## Monday December 13, 1999



# Part 

# II


# Department 

# of Energy

Office of Energy Efficiency and Renewable Energy

10 CFR Part 431 Energy Efficiency Program for Commercial and Industrial Equipment: Test Procedures and Efficiency Standards for Commercial Warm Air Furnaces; Efficiency Certification, Compliance, and Enforcement Requirements for Commercial Heating, Air Conditioning and Water Heating Equipment; Proposed Rule

### 69598 Federal Register 1

### Vol.

DEPARTMENTOF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 431
[Docket No. EE-RMITP-99-4501

RIN NO. 1904-AA96
Energy Efficiency Program for Commercial and IndustrialEquipment: Test Proceduresand Efficiency Standards for Commercial Warm Air Furnaces; Efficiency Certification, Compliance,and Enforcement Requirements for Commercial Heating, Air Conditioning and Water Heating Equipment

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION: Proposed Rule and Public Hearing.

SUMMARY: The Energy Policy and Conservation Act, as amended (EPCA), establishes energy efficiency standards and test procedures for certain commercial equipment, including commercial warm air furnaces. In today's rule theDepartment of Energy (DOEorthe Department)proposes regulations to implement the standards and test procedures for these furnaces and to address other ancillary matters (e.g.,compliance certification, prohibited actions,and enforcement procedures)for commercial heating, air conditioning and water heating equipment generally.

DATES: The Department will accept comments, data,and information regarding the proposed rule until February 28, 2000. Please submit ten (10)copies. In addition, the Department requests that you provide an electronic
copy (3?"L3' diskette) of the comments in WordPerfectT" 8.

TheDepartment will hold a public hearing onThursday, January27, 2000, in Washington, DC. Please send requests to speak at the hearing sothat the Department receives them by 4:00 p.m., January24, 2000. Sendten (10)copies of your statementsfor the public hearing so that theDepartment receives them by 4:00 p.m., January 24,2000. The Department also requests a computer diskette (WordPerfectTM 8)of each
statement.

ADDRESSES: Please address requests to make statementsat thepublic hearing and send copies of such statements to Ms. Brenda Edwards-Jones,and send written comments to Mr. Cyrus Nasseri, each at the following address:U.S. Department of Energy, Office of Energy 

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Efficiency andRenewable Energy,EE41,1000Independence Avenue, SW, Washington,DC 20585-0121. You should identify all such documentsboth on the envelope and on the documents

as "Energy Conservation Program for Commercial Equipment: Test Procedures for Commercial Warm Air Furnaces and Certification Requirements for Commercial Equipment,Docket No. EE-RM/TP-99- 450." The hearing will begin at 9:00

a.m., onThursday,January 27, 2000, and will take place inRoom 1E-245 at the U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue, SW,Washington, DC 20585-0121. You can find more information concerning public participation in thisrulemaking proceeding in section 

### IV, "Public Comment," of this notice.

You can read copies of thetranscript of the public hearing andpublic
commentsreceived in the Freedom of InformationReading Room (Room No. 1E-190) at theU.S. Department of Energy, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585-0121, between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATIONCONTACT: Cyrus H. Nasseri, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Mail Station,EE-41. 1000Independence Avenue, SW, Washington, D.C. 20585, (202)586- 9138,FAX (202) 586-4617,

e-mail:Cyrus.Nasseri@ee.doe., OOV, or Edward Levy, Esq, U.S. Department of Energy, Office of General Counsel, Mail Station,GC-72, 1000Independence Avenue. SW,Washington, D.C. 20585, (202)586-9507, e-mail: Edward.Levy@hq.doe.gov

SUPPLEMENTARY INFORMATION:

The proposed rule refers to certain industry standards established by the American National Standards Institute (ANSI), the American Society of Heating, Refrigerating and AirConditioning Engineers, Inc. (ASHRAE), the Illuminating Engineering Society of North America (IES), and Underwriters Laboratories (UL).These individual industry standards are referenced by the single comprehensive "ANSIIASHRAEI IES Standard 90.1-1989," which will be cited by its shortertitle "ASHRAE/IES Standard 90.1" in the rest of this document. The proposed rule would incorporate, by reference, the test procedures contained in ASHRAEIIES Standard 90.1 for commercial warm air furnaces. Those industry standards are: American National Standards Institute 

### 1999/Proposed Rules

(ANSI)Standard 221.47-1993, "GasFired Central Furnaces'; and Underwriters Laboratories (UL) Standard 727-1994, "Standard for OilFired Central Furnaces." Theproposed rule would alsoincorporate by reference, (1) Sections 8.2,11.2,and 11.2.1, and accompanying Forms 715 and 721, of the Hydronics Institute (HI) Standard "Testing andRating Standard for Heating Boilers," 6th Edition, 1989, which specify a flue loss calculation procedure for oil-fired equipment, and (2)Sections 7.2.2.4, 7.8, 9.2 and 11.3.7 of the ASHRAE Standard 103-1993, "Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces andBoilers," which specify a test procedure for condensing furnaces.

You can view copies of these standards at the Department of Energy's Freedom of Information Reading Room
at the address stated above. You can obtain copies of theASHIZAE andHI standards from the American Society of Heating, Refrigerating, and AirConditioning Engineers, Inc., 1971 Tullie Circle,NE, Atlanta, GA 30329, and the Hydronics Institute Inc., 35 Russo Place, Berkeley Heights,N.J. 07922, respectively. You can obtain copies of theANSI and UL standards from Global EngineeringDocuments, 15 Inverness Way East, Englewood, CO 80112,or

### http://global.ihs.corn/. You can obtain electronic versions of the ASHRAE standards at ASHRAE's web site,

### http:l/www.ashrae.org/booW bookshop.htm, and of theANSI standards at ANSI's web site,http:ll 

### webstore.ansi.org/ansidocstorel. For more information concerningpublic participation in this rulemaking proceeding, see section IV, "Public Comment," of this notice.

You can obtain the latest information regarding the public hearing from the Office of Codes and Standards world wide web site at the following address: http://www.eren.doe.gov/buildings/ codes-standards/index.htm.

I. Introduction

A. Authority B. Background.
1.General.
2. The Test Proceduresfor Furnaces. C. The ProposedRule.
11. Discussion

A. General. B. ASHRAEIIES Standard 90.1Referenced

FurnaceTest Standards. C. Definition of Thermal Efficiency for

Furnaces. D. Proceduresfor MeasuringFlue Losses of

Oil Furnaces and IncrementalEfficiency of Condensing Furnaces.
I.FlueLoss Calculation for Oil-Fired

Furnaces.
2.Condensing Furnaces.

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E. Sampling,Certification and Enforcement

for Commercial Heating,Air Conditioning and Water Heating Equipment. 1.Background and Public Comments.

a. Purpose. b. Sampling.

c. Public Comments and

Recommendations. 2. Proposed Certification and Enforcement

Procedures. a. CertificationProcedures. b. Basis for Certification: Methods for

DeterminingEfficiency.

c. VoluntaryIndependent Certification

Program. d. ManufacturersNot Participating in a

VICP.

e.Enforcement.
3.Accommodationfor Manufacturing

Tolerances,Measurement Uncertainty and Small Sanlple Sizes. 111.Procedural Requirements

A. Review Under the National

Environmental Policy Act of 1969. B. Review Under Executive Order 12866,

"Regulatory Planningand Review." C. Review Under the Regulatory Flexibility

Act. D. Review Under Executive Order 13132. E. Review Under Executive Order 12630,

"Governmental Actions and Interference with ConstitutionallyProtected Property Rights."
F. Riview Under the Papenvork Reduction

Act. G. Kevielz Under Executive Order 12988,

"Civil JusticeReform." H. Review Under Section 32 of the Federal

Energy AdministrationAct of 1974. I. Review Linder Unfunded Mandates

Keforni Act of 1995. J. Kevieu. Under the Plain Language

Directives.
I<. Kevie\v Under the Treasury and General

Government AppropriationsAct, 1999.
IV. Public Comment

A.\Vritten Comment Procedures. B. t'ublic Hearing.
1.Procedures for SubmittingRequests to

Speak.
2. Conduct of Hearing. C. Issues on which Comments are

Requested.

I. Introduction

Part R of Title 111 of the Energy Policy and Conservation Act (EPCA)of 1975, Pub. 

### L. 94-163. as amended,bythe National Energy Conservation Act of 1978 (NECPA). Pub. 

### L. 95-619, the National Appliance Energy Conservation Act of 1987 (NAECA), Pub. 

### L. 100-12, the National Appliance Energy Conservation Amendments of 1988 (NAECA 1988), Pub. 

### L. 100-357, and the Energy Policy Act (EPACT), Pub. 

### L. 102-486, established the Energy Conservation Program for Consumer Products other than Automobiles. Part 3 of Title IV of NECPA amended EPCA to add "Energy Efficiency of Industrial Equipment." which included air conditioning equipment,furnances, and other types of equipment.

EPACT also amended EPCA with respect to industrial equipment. It provided definitions,test procedures, labeling provisions, energy conservation standards,and authority to require information andreports from manufacturers. See42 U.S.C. 6311- 6316. Specifically, for example,EPCA

now authorizes the Secretarey of Energy
to prescribe test procedures that are reasonably designed to produce results whichreflect energy efficiency, energy

use and estimated operating costs,and that are not undulyburdensome to conduct.42 U.S.C. 6314. With respect to. certain industrial equipment for which EPCA prescribes energy conservation standards,including commercial war air furnances, "the test procedures shall be those generally accepted industry testing procedures orrating procedures developed or recognized by the American Society of Heating, Refrigerating and Air Conditioning Engineers, as referenced in ASHRAEJ IES/ Standard 90.1 and in effect onJune 30, 1992." 42 U.S.C. 6314(a)(4)(A). Further,if such an industrytesting or rating procedure gets amended,DOE
must revise its test procedure to be consistent with the amendment, unless the Secretary determines, based on clear and convincing evidence, that to do so would not me& general requirements spelled out in the statute for test procedures. 42 U.S.C. 6314(a)(4)(B). Before prescribing any test procedures for this equipment,the Secretary must publish them in theFederal Register and afford interested persons at least 45 days to present data,views and arguments. 42 U.S.C. 6314(b).Effective 360 days after a test procedure rule applicable to certain covered equipment, includingcommercial warm air furnances, is prescribed, no manufacturer. distributor. retailer or private labeler may make any representation in writing or in broadcast advertisement respecting the energy consumption or cost of energy consumed by such equipment,unless it has been tested in accordance with the prescribed procedure and such representation fairly discloses the results of the testing. 42 U.S.C. 6314(d). Finally, EPACT extends certain powers, originally granted tothe Secretaryunder NAECA, to require manufacturers of equipment covered by this proposed rule to submit information and reports for a variety of purposes, including insuring compliance with requirements. See 42 U.S.C. 6316(a). 

### B. Background

1.General

TheDepartment of Energy (DOEor theDepartment) has an energy conservation program for consumer products, conducted under Part 

### B of Title 111of EPCA, 42 U.S.C. 6291-6309. Under EPCA,the consumer appliance standards program essentially consists of four parts: test procedures, Federal energy conservation standards, labeling, and certification and enforcement procedures. The Federal Trade Commission (FTC)is responsible for labeling,andthe Department implements theremainder of the
program ascodified in Title 10of the Code of Federal Regulations, Part 430- Energy Conservation Program for ConsumerProducts.

Since 10CFR part 430 covers consumer products, which differ from commercial and industrial equipment, the Department is creating a new Part 431 in the Code ofFederal Regulations (10CFR part 431).Energy Conservation Program for Commercial and Industrial Equipment, to implement DOE'S
program for certain commercial and industrial equipment covered under EPCA. These will include commercial heating, air conditioning and water heating equipment. This new program will consist of: Test procedures, Federal
energy conservation standards, labeling, and certification and enforcement procedures. EPCA directs the Department, rather than theFTC,to administer the statute's efficiency labeling provisions for commercial equipment.

On April 14and 15,1998, the Department convened a public workshop to solicit views and information from interested parties that would aid in the development of rules for commercial heating, air conditioning and water heating equipment. The Department requested comment on a number of specific issues, including issues related to test procedures, and the
most cost effective and reliable regimes for sampling,certification and enforcement. Statements during the public workshop and written comments that were received afterwards helped refinethe issues involved in this rulemaking andprovided useful information contributing to their resolution. TheDepartment convened a second public workshop on October 18, 1998,to obtain comments onthe issues

as they had been refined, and on approaches presented by theNational Institute of StandardsandTechnolonv -" (NIST)for resolving them.

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2. The Test Procedures for Furnaces

During the April 1998 workshop, the Department sought comments on the following issues regarding test procedures for commercial warm air furnaces:

(1)EPCA uses thermal efficiency as the descriptor for reporting the efficiency value of commercial warm air furnaces. The test standard ANSI Standard 221.47,referenced by ASHRAEIIES Standard 90.1 for gas-fired furnaces, defines a thermal efficiency whose value is calculated by the flue loss method,resulting in a value that is customarily called combustion efficiency inthe Heating, Ventilation and Air-Conditioning andWater Heating (HVAC&WH) industry.Also. the test standard UL Standard 727 referenced by ASHRAEIIES Standard 90.1for oil-fired furnaces specifies the determination of a flue loss during the combustion test under steady state conditionsresulting similarly in a value forcombustion efficiency. Based on the fact that the combustion efficiency values are calculated by the referenced
test standards, should the Department interpretthe EPCA efficiency descriptor "thermal efficiency" to have the same meaning that "combustion efficiency" has in common technical use?

(2) The referenced test standard for oil-fired furnaces, UL Standard 727, does not provide a calculation procedure for the determination of flue loss. Should DOE designate the flue loss calculation procedure from the Hydronics Institute Testing and Rating Standard for Heating Boilers, the referenced test standard for oil-fired boilers, for calculating flue loss? (3) Should DOE provide a procedure specifically for testing condensing furnaces?

Attendees at the April 1998 workshop provided comments and input on these issues and the California Energy Commission (CEC)provided additional written comments afterwards. These comments helped to further clarify the issues. Section 11,Discussion, will cover them in more detail.

After the April 1998 workshop, the Department and NIST worked towards addressing the identified issues for commercial warm air furnaces. A set of recommendations resulted from that work, and NIST developed a summary report of the recommendations. The summary report formed the basis for discussions during the October 18 workshop, which enabled the Department to elicit further views and information from interested parties. The summary report included draft rule language for commercial warm air furnaces.



### C. 

### TheProposed Rule

In today's proposed rule the Department proposes energy efficiency
test procedures for commercial warm air furnaces. In formulating these test procedures, the Department has consideredboth oral and written comments, and has incorporated recommendations where appropriate. Section I1 below contains the reasons for incorporating or not incorporating any significant recommendations. The Department will soon issue separate notices of proposed rulemaking regarding test procedures for commercial water heaters,boilers and air conditioners.

Today's proposed rule also contains compliance, certification, enforcement and certain other general provisions that would apply to all covered commercial heating, air conditioning and water heating equipment.The Department intendsto promulgate a single set of provisions on these subjects for all classes of such equipment,and therefore the other notices proposing test procedures for such equipment will not address these subjects.

11. Discussion

A. 

### General

This section discusses the main test procedure issues identified for commercial warm air furnaces and certification and enforcement issues for all covered commercial heating, air conditioning and water heating equipment. The furnacetest procedure issues are discussed in subsection 

### (B) "ASHRAEIIES Standard 90.1 Referenced Furnace Test Standards," subsection (C)"Definition of Thermal Efficiency for Furnaces," and subsection (D)"Procedures for Measuring Flue Losses of Oil Furnaces and Incremental Efficiency of Condensing Furnaces." Subsection (E)addresses the certification and enforcement issues for commercial heating, air conditioning and water heating equipment generally.



### B.ASHRAEDES Standard 90.1 

### Referenced Furnace Test Standards

EPCA requires that the testing procedures for measuring the efficiency ofcommercial warm air furnaces must be those generally accepted industry testing procedures or rating procedures that were developed or are recognized by the American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc., as referenced in ASHRAEIIES Standard 90.1and that were in effect on June 30, 1992. Also, if such 

### an industry test procedure or rating procedure for commercial warm air furnaces is amended,the Secretary of Energy must adopt such revisions unless the Secretary determines that to do so would not produce test results which reflect energy efficiency, energy
use, and estimated operating costs, or that the procedures would be unduly burdensome to conduct.

The version of ASHRAEIIES Standard 90.1 in effect onJune30, 1992 references two industry test standards:

one for gas-fired furnaces,the American National Standard Institute (ANSI) Standard 221.47-1987 (ANSI Standard 221.47);and the other for oil-fired furnaces, Underwriters Laboratory (UL) Standard 727-1986 (UL Standard 727). Since 1989,both industry test standards have been revised several times. The revised ANSI Standard 221.47-1987 has resulted in ANSI Standard 221.47-1993, and the revised UL Standard 727-1986 in UL Standard 727-1994. Also, ASHRAE revised ASHRAE/IES Standard 90.1-1989 itself 

### via several addenda: 90.lb,gO.ld,and 90.le in 1992;90.lc,90.lg,and 90.li in 1993; and 90.lm in 1995 and 90.ln in 1997. Two of the addenda containedrevisions related to warm air furnaces: Addendum 90.lb updated the referenced furnace
test standards to their most up-to-date versions in 1992, and Addendum 9O.li revised the Table (Table 10.9in ASHRAEIIES Standard 90.1) containing the Standard Rating Conditions and Minimum Performance with respect to

warm air furnaces. Currently, a major revision to ASHRAEIIES Standard 90.1- 1989, designated as ASHRAE/IES Standard 90.1-1989R, is going through the ASHRAE public review process. Once ASHRAE formallv completes revisions to ASHRAEIIES Standard 90.1,the Department intends to either amend its test procedure as necessary to make it consistent with the amended version of ASHRAEIIES 90.1, or determine by rule that doing so would
not meet certain EPCA requirements (for example, it would be unduly burdensome to conduct).

Regarding the two industry test standards revised after June30, 1992, there is no change in the energy performance test section of either standard from its prior version. Therefore,the Department proposes to incorporate by reference the latest versions of the two referenced test procedures. These test standards are ANSI Standard 221.47-1993 for gasfired central furnaces and UL Standard 727-1994 for oil-fired central furnaces.

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C. Definition of ThermalEfiiciency for 0.75% of the input rating. GAMA stated Furnaces that this prescriptive requirement was



### E~CA specifies the 

### energy standard an outgrowth of discussionsbetween
levels and values for commercial warm the industry and the ~SHftAE
air furnaces in terms ofthermal committee about defining a seasonal efficiency. Section 342(a)(4)(A)-(B),42 measure ofefficiency for commercial
U.S.C. 6313(a)(4)(A)-(B).The test warm air furnaces, and the resulting standard ANSI Standard 221.47 (forgas- compromise was to continue to specify fired furnaces) specifiesthat the thermal a thermal efficiency term that is 100 efficiency for a furnace is to be percent minus flue losses,to be computed by a formula defined as "100 followed by several additional percent minus percent flueloss," and prescriptive requirements that relate to UL Standard 727 (for oil-fired furnaces) off-cyclelosses,forexample. defines a maximum allowable flue loss Consequently, GAMA stated that it (whichis not to exceed 25 percent) in would be stfongly opposed to any its combustion test section. Otherthan suggestion to definethe term thermal the flue loss requirement, UL Standard efficiencyas (100percent

-. flueloss 7Z7 does provide for require the '(percent) - jacket losses (percent)]. calculation of either efficiency or output.However,with the measured Rheem (Page 162,April 14,1998 flue loss, one can calculate an efficiency Workshop Transcript)pointed out that using the formulaas specified in ANSI the efficiency definition also raises a Standard 221.47. The efficiency as functional issue. To achieve EPCA
calculated by the formula in ANSI efficiency values under a traditional
Standard 221.47 (and defined as definition ofthermal efficiency (e.g.,an thermal efficiency in ANSI Standard 80percent thermal efficiency as 221.47) is customarily called the determined by reducing the combustion combustion efficiency of fossil-fueled efficiency by thejacket loss) could equipment. The statute does not provide result in flue gas condensation, which a definition for the term "thermal causes corrosion and premature failures. efficiency."

These points were discussed during the April 1998 workshop. Conventionally,the definition for "thermal efficiency" is the useful output of a device divided by its input, expressed in percent. It is related mathematically to the combustion efficiency (also expressed in percent)by the equation "Thermal Efficiency (percent)= Combustion Efficiency (percent) - JacketLoss (percent)," where the combustion efficiency is equal to "100 percent minus flue loss (percent)." The discussion concerned whether the Department should include

ajacket loss measurement, in addition
to the flue loss. in the test procedure.

GAMA (Page 158,April 14,1998 Workshop Transcript) asserted that (1) the thermal efficiency in the statute actually referred to the classical definition of combustion efficiency, (2) thermal efficiency was specified because it was so called in the referenced test procedure, and (3)it
meant 100 percent minus flue loss (percent).GAMA believes that defining the term thermal efficiency to be "combustion efficiency minusjacket loss" would change both the intent and the stringency of the requirements that currently exist in ASHRAEIIES Standard 90.1 and in EPCA. GAMA further stated that there is an additional requirement in the proposed ASHRAEI IES Standard 90.1-1989R limiting the jacket loss of the furnace to less than Based on the above discussion, the Department understands that the

consensus of the attendees was that in the test procedure the term "thermal efficiency," as specified in the statute for commercial warm air furnaces means what is commonly defined as "combustion efficiency" in other
contexts. The Department believes that, consistent with adopting industry test standards referenced in ASHRAEIIES Standard 90.1-1989, the statute's intent is to assign the same meaning to the term "thermal efficiency" as its definition in the corres~ondine " referenced standards. Therefore, the Department believes that the term thermal efficiency, when used as the
energy standard descriptor for commercial warm air furnaces, should be calculated as 100percent minus percent flue loss,as was specified in the referenced ANSI Standard 221.47. When the Department proposed this approach during the October 1998 workshop, there was no objection from theparticipants. Accordingly, the Department proposes today to explicitly define the term thermal efficiency of commercial warm air furnaces as equal
to 100minus the percent flue loss. This proposal would avoid any possible future confusion regarding the meaning of the term thermal efficiency when used in the test procedure for commercial warm air furnaces. 

### 1999/Proposed Rules 69601

D. Proceduresfor MeasuringFlueLosses of OilFurnaces andIncremental Efficiencyof CondensingFurnaces

1.Flue Loss Calculation for Oil-Fired Furnaces

As stated above, thereferenced test standard for oil-fired furnaces, UL Standard 727, does not provide a calculation procedure for the determination of flue loss. However, a value for the percent flue loss is needed for determining the efficiency. At the April, 1998workshop, the Department suggested the use of the flue loss calculation specified in the ASHRAE Standard 90.1 referenced test standard for oil-fired boilers-the 1989edition of the Hydronics Institute Testing and Rating Standard for Heating Boilers-for calculating the flue loss of an oil-fired furnace. Since the type of flue gas data required andthe formulas/equations used for the flue loss calculation are identical for any oil-fired equipment, the calculation procedure as specified in the Hydronics Institute test standard for

an oil-fired boiler is directly applicable
to an oil-fired furnace. There were no comments opposing the Department's suggestion during the Department's workshops held during April and October 1998.

For the above reasons,the Department is proposing as the calculation procedure for percent flue loss for oilfired furnaces theprocedure in (1) sections 8.2, 11.2,and 11.2.1 of the 1989 Hydronics Institute Testing and Rating Standard for oil-fired boilers, and (2) those parts of accompanying Forms 715 and 721 which specify the items tobe measured and calculated to obtain flue loss, and which are not related to steam, water or natural gas.

2. Condensing Furnaces

Participants raised and discussed the issue of testing a condensing furnace (a

warm air furnace designed to condense part of the water vapor in the flue gases and equipped with a means of collecting and draining this condensate)during the Department's April 1998workshop. ASHRAEIIES Standard 90.1and the two test standardsreferenced by ASHRAEI IES Standard 90.1 do not specifically provide test conditions for testing a condensing furnace.

Attendees at the April 1998 workshop from the furnace industry (GAMA, York International, and Lennox) stated that there are very few, if any,commercial unitary or rooftop condensing furnaces

on the market, and it is difficult to provide for the requirements of a condensing furnace in a roof-top installation. Therefore, they stated,it is
not necessary to provide a DOE test

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procedure for testing the condensing feature of a commercial furnace at present.

York (April 14,1998Workshop Transcript, Page 220) stated that condensate measurement should not be specified for condensing boilers and furnaces. York stated that in general, rooftop combustion equipment will not operate under condensing conditions, because of the difficulty of condensate disposal. York felt that in the future, condensing furnaces might become a possibility as the technology evolves. York stated that currently, most rooftop units have an efficiency of 80 percent or less,and they operate at flue temperature above condensing range.

Lennox (April 14,1998Workshop Transcript, Page 220) agreed with the York comment and emphasized that although condensing units have been on the market for a long time, none of them, for all intents andpurposes, are unitary products sold for commercial applications. Lennox stated that this is dueto a number of problems, and if these problems were to be solved through a technological breakthrough, then a test procedure would be appropriate.

During the October workshop,Natural Resources Canada (October 13, 1998 Workshop Transcript,Page 285) stated that the condensate collected from the condensing furnace should be only what condenses within the appliance itself and not beyond the heat exchan er.

TheDepartment disagrees wit fl the observation from the furnace industry workshop attendees that DOE'S adoption of a test procedure for determining the improvement to the efficiencydue to the condensing feature ofa condensing furnace is unwarranted
at the present time. Since a condensing furnace is likely to provide a significantly higher efficiency, the Department believes that a test procedure should be in place in order to have a readily available, accurate method for testing these more efficient furnaces in the future,even if no commercial condensing furnaces are on the market at the present time. In addition, a test procedure is needed for evaluatingthis design option during any future consideration of possible revisions to the efficiency standard.

Although the ASHRAEIIES Standard 90.1 does not specify a test procedure for measuring the energy efficiency of a condensing furnace, an industry test procedure-ASHRAE Standard 103- 1993-does exist for residential condensing furnaces and industry has been using it for over a decade. The Department believes that the method of collecting and measuring the quantity and the temperature of the flue condensate under steady state conditions at the maximum rated input

over a 30 minute test period, should also be applicable to a commercial condensing furnace. Since the Department sees no technical problems in its application to commercial warm air furnaces,the Department is proposingto adopt the test procedure specified in section 7.2.2.4, 7.8, 9.2 and 11.3.7 of ASHRAE Standard 103-1993 for determining the increment in energy efficiency due to the condensing feature of a condensing furnace. In adopting the test procedure, a slight modification is applied to the equation in Section 11.3.7.2 of ASHRAE 103-1993 for steady-state heat loss due to hot condensate flowing down the drain. In the aforementioned section,the assumed indoor temperature is 70°F, and the average outsidetemperature is specified as 42°F.Themodification replaces both of these temperatures with the actual temperature ofthe test area, to be consistent with Section 2.2.8 of ANSI 221.47-1993, during the steadystate thermal efficiency test.

The Department agrees with the recommendation from Natural Resources Canada that the condensate from the unit be separated from the condensate from the flue pipe. The referenced test procedure in ASHRAE Standard 103-1993 requires an installation which prevents the flue pipe condensate from flowingback into the unit. (See section 7.2.2.4 of ASHRAE Standard 103-1993).



### E. Sampling, Certification and Enforcementfor Commercial Heating, Air Conditioning and WaterHeating Equipment

1.Background and Public Comments



### a.Purpose. The purpose of establishing regula\ions concerning sam~line, certification and enforcement

L u is to provide reasonable assurance that covered commercial equipment are appropriately tested and actually comply with applicable energy conservation standards.In today's rule, the Department proposes a set of provisions concerning compliance certification and enforcement procedures for certain commercial equipment.To help assure compliance with energy conservation standards, the rule would require that each manufacturer use one of the specified methods for determining the efficiency of each basic model of its commercial heating, air conditioning and water heating equipment, and certify that the basic models comply with the applicable energy conservation 

### 1999

### /Proposed Rules

standards.In addition,therule specifies enforcement procedures for use in resolving any disputed performance claims for such commercial equipment.



### b. Sampling. For consumer products,

as described in 10CFR part 430, manufacturers must test a sample of each basic model of a covered product
to establish its efficiency level and its compliance with the applicableenergy efficiency descriptor value specified in the Act. Thetest procedure for each product incorporates a sampling plan designed to give a reasonable assurance that the true mean performance of the equipmentbeing manufactured and sold
meets or exceeds the applicable value, and is accurately determined. The mean performance is a critical performance characteristic of a covered product because it determines the overall energy usage of a covered product population, and thusthe impact oftheproduct on national energy consumption. Individual units produced from a single design may vary in energy efficiency, however, for a number of valid reasons, including variability in manufacturing. The Department must balance the risk to the public of purchasing a noncomplying unit with theburden onthe manufacturer in conducting performance testing to assure compliance, to provide adequate protection for the public without imposing an excessive testing burden on the manufacturers. Given that performance testing of every unit ofa covered product would be prohibitively expensive and time-consuming, the manufacturer must estimate the average performance of the basic model using a sample drawn from the population. The method for estimating equipment performance from a small sample of a large population is called a sampling plan.



### c.Public Commentsand Recommendations. At the April 1998 workshop,the Department presented for discussion compliancecertification and enforcement sampling procedures for commercial equipmentthat were similar
to those established in the past for

consumer products.These require manufacturers to certify compliance based on testing under strictly prescribed statistical sampling schemes designed to assure, with reasonable probability, that the average efficiency of each product sold meets the applicable standard.Enforcement involves a similar, but not identical statistical sampling arrangement. The advantage of this approach is that manufacturers can provide adequate

assurance of compliance without having to test every single unit they produce.

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When presented with the concept of applying a prescribed statistical sampling method to certifying commercial equipment, the participants
at the April 1998 workshop made the following eneral observations:

i. A wor 

# fable uniform sampling method covering the wide variety of commercial equipment would be difficult,if not impossible, to formulate. This is due to the large number of design variations and small numbers of identical units for some equipment.

ii. The California Energy Commission (CEC)and several voluntary industry associations already have effective efficiency certification programs in place that leave the sample design to the manufacturer.

iii. With adequate independent verification and penalties for improper certification by a verification program. prescribing the sampling schemes is
unnecessary, since the manufacturers would have an incentive to design them in each case so as to limit the risk of being found to be out of compliance.

With these observations in mind,the Department investigated the certification programs of the State of California, the Air Conditioning and Refrigeration Institute,the Gas Appliance Manufacturers' Association, and the Hydronics Institute. Participation in these industry
programs,generically referred to as Voluntary Independent Certification Programs (VICP's),could help provide

assurance of accurate performance claims. Manufacturers have been participating in VICP's primarily for marketing reasons, sincethey feel that demonstrating the performance of their equipment via an independent testing
agency adds legitimacy to their performance claims. VICP's are typicallv operated by industry associations, and the costs of the programs are covered by fees paid by the participating manufacturers. Manufacturers certify the performance metrics of their equipment to the VICP, the VICP publishes a directory that lists performance values of equipment offered for sale by each manufacturer, and the VICP periodically verifies the performance claims. When the VICP determines that a model performs below its rated level,generally the manufacturer must either re-rate the product or cease manufacturing it and have it removed from the directory (i.e., "obsolete" the model). A manufacturer's failure to meet such conditions typically results in its expulsion from the VICP. All of these programs entail some form of the following: (1)Certification by a manufacturer to a VICP of the efficiencv level of each of its covered products: (2) 64, 

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the VICP's independent verification or supervision of levels claimed by the manufacturer: and (3) penalties imposed by the VICP to discourage inaccurate ratings and ensure that certified efficiencies would be reliable. On the other hand, some manufacturers do not participate in VICP's, and no program exists atpresent for commercial warmair furnaces, so the Department would need to specify its own certification testing and verification arrangement,at least for equipment not otherwise covered by a VICP.

The Department received additional comments during, and subsequent to, the second public workshop which was held on October 18, 1998. These comments helped refine the proposed compliance certification and enforcement procedures to take advantage of currentvoluntary industry certification programs and allow alternate procedures for determining compliance.

At the second workshop, commenters suggested that DOE consider the following elements in the proposed rule: After DOE initially approves a VICP, in accordancewith the specified criteria, a VICP should not require reapprovalby DOE unless there is a change within the program. In case of such a change,the program would inform DOE promptly and apply for a re-approval. Another suggestion was that DOE approve a VICP for a predetermined length of time (suggested time frame: 12months to 5 years), during which DOE could revoke approval at any time if warranted. Participation in a VICP shouldbe a basis for establishing both (1) the validity of product efficiency representations, and (2)compliance with minimum standards. The "obsoleting" of a model should
not automatically follow its "delisting" from a VICP product directory,ifthe basic model falls short of the certified efficiency but still meets the minimum efficiency standards prescribed by EPCA. A VICP should monitor the performance data and provide this data
to DOE. For Non-Participants in VICP's, review of manufacturer self-testingby a licensed Professional Engineer to assure compliance and the accuracy of efficiency representations by itself is not adequate. They should conduct performance testing or verify the testing results by using a qualified independent laboratory. DOE should approve alternative methods other than testing for efficiency determinations, but the Department should guard against public disclosure of proprietary methods,which could harm individual manufacturers. An alternative method for efficiency determination should not require DOE approval inthe case of VICP participants. Certification provisions should afford manufacturers the discretion to certify more conservative 

### (i.e.,lower) efficiency ratings than the mean efficiency values predicted by the manufacturers' tests or calculations. Enforcement provisions should restrict the definition of units available for testing to units which are available for commercial distribution within the U.S.Enforcement testing should require samples of no more than two units initially, followedby up to two more units if the first two fail. The compliance statement for a basic model should be a one-time report
to DOE which either the manufacturer1 private labeler or a VICP acting on their behalf can submit.

Written comments underscored some of these observations and added others. The Air-Conditioning & Refrigeration Institute (ARI)(October 13,1998 Workshop,Written Comment #9) requested that the regulations allow for the rerating ofbasic models that,when tested, fall short of their certified efficiencvbut still meet the minimum efficiency standards.ARI alsorequested that re-approval of a VICP should only be required when there is a change in the program, or after five years, whichever comes first. On the issue of enforcement testing, ARI supported starting with two test samples instead of four. They questioned the need for a compliance statement being submitted
to DOE for manufacturers who participate in a VICP, sincethe VICP will have to be approved by DOE, and manufacturers' ratings will be verified through the VICP.

Written comments from the Gas Appliance Manufacturers Association (GAMA)(October 13,1998Workshop, Written Comment #lo)also requested that the rerating of a product which
meets the energy efficiency standard prescribed by EPCA,but tests lower than the rating submitted by the manufacturer, be allowed. GAMA also felt that periodic re-approval of a VICP should not be required, and that enforcement testing should entail an initial sample of two units. GAMA also questioned the need for a compliance
statement for VICP participants.

Based upon the comments received during and after the public workshops, the Department proposes requiring manufacturers to certify compliance based on testing, and to either conduct

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the testing under a DOE-prescribed sampling scheme, orparticipate in a VICP approvedby the Department.Each option would afford the opportunity to utilize alternative efficiency determination methods. In this way,the Department proposes to minimize additional testing burdens on manufacturers of commercial equipment, while maintaining a certification procedure which is fair to all manufacturers, and which provides reasonable assurance that the established miniinum performance standards are being met. Theproposed procedures, described inthe following sections, include a basic certification program, a provision for VICP's, and an enforcement testing plan. The Department anticipates that this proposal would not require any additional testing beyond what manufacturers who are participating in industry certification programs conduct already,and it would involve a similar level oftesting by manufacturers who elect not to participate in VICP's.

2. Proposed Certification and Enforcement Procedures



### a. Certification Procedures. The Department proposes to require each manufacturer to certify to the Department the efficiencies of commercial equipment it manufactures, either directly or through a VICP. This would be accomplished by submitting both a compliance statement,a one-time submittal,and a certification statement for each basic model of covered equipment. The manufacturer would be required to maintain records of all test results and related analysis used in the determination of the mean energy performance. Today's rule includes possible formats for certifying efficiency
to the Department.



### b.Basisfor Certification:Methodsfor Determining Efficiency. Underlying each certification to the Department would be the manufacturer's determination of a basic model's energy efficiency or usage. The proposed rule would require a manufacturer to make such determination either by testing the basic model, or by calculating its energy efficiency or use through use of an alternative efficiency determination method (AEDM).The specific requirements for testing and AEDMs would differ, however, depending on whether a manufacturer's covered products were included in a VICP approved by the Department.

An AEDM is an analytical procedure, such as a computer simulation or other approach, that can determinethe energy efficiency or use of a product. The Department proposes to permit the use of AEDMs due to the potentially large number ofbasic model variations, and theburden that would result if the Department required that each basic model be tested to determine its efficiency. But a manufacturer could use

anAEDM to establish the energy efficiency or use of covered equipment only if the ADEM had been verified and validated with measured data,

### i.e.,using
test results. Thus, although the Department proposes to permit the use of AEDMs, and would not require the testing of every basic model, all efficiency determinations would be 

### based ontestin



### .

The propose

# f requirements for testing would apply both to tests used directly
to determine the efficiency of a basic model, and to tests used to validate an AEDM. All manufacturers would be required to (1)perform testing in accordance with the applicable DOE test procedure, (2)test randomly selected units representative of the basic model, (3)have their testing and rating results
meet industry standards for accuracy for the equipmentbeing rated, and (4)test

a sufficient number of units to produce an accurate estimate of the mean efficiency of all units manufactured of the basic model. The proposed rule allows VICP participants substantial discretion in this last respect, by permitting them to use any valid statistical method to determine the number of units to be tested and the mean efficiency. For non-participants, the Department is proposing stricter, prescribed sampling procedures, since their efficiency ratings will not be subject to routine verification testing.

As to AEDMs,in addition to the general requirements stated above, the Department would require any manufacturer employing an AEDM to maintain written documentation of its validation of the AEDM. In addition,if the equipmentbeing rated is not listed with a VICP approved by the Department, validation would require demonstration that the results from using the AEDM are consistent with the results of actual tests of at least three basic models, and the manufacturer would be required to obtain advance approval of the AEDM by the Department.The manufacturer would apply for such approval in writing and submit all relevant information related
to the calculations and calibration procedures.



### c. Voluntary Independent Certification Program. Participation in a VICP would allow a manufacturer an alternative to (1) following the DOE sampling plan, and (2)required DOE approval of an AEDM. A VICP participant must still test its products and validate its AEDM, and must file a compliance statementand certification report, either directly to the Department,

or via the VICP on the manufacturers' behalf.

TheDepartment proposes that it would approve VICP's that meet the following requirements: TheVICP publishes in written form the procedures for the operation of the certification program, and permits all manufacturers of products covered by the program to participate solong as they comply with requirements concerning operation of the program. Toparticipate in the VICP, a manufacturer would be precluded from distributing any basic models of equipment covered by the program unless it had reported to the VICP the energy efficiency or usage, as applicable, of that basic model,based on measurement ofthe basic model's performance. TheVICP publishes or otherwise makes available to the general public and to the Department, these efficiency ratings. TheVICP conducts periodic verification testing on listed equipment, suchthat the performance of each basic model is checked and compared to its rated efficiency value at least once every five years. TheVICP testing personnel select units for verification testing randomly from manufacturer's stock. The VICP conducts its verification testing at an independent laboratory, or under the supervision of independent personnel, in accordance with the prescribed DOE test procedures. The VICP verification testing meets industry standards for the accuracy of testing and of rating results for the equipment being tested, and the program satisfactorily describes how it
meets these standards. The VICP has an appropriate standard for determining whether the efficiency rating a manufacturer claims for a product is valid. The VICP provides to the manufacturer copies of all records of completed verification testing performed on the manufacturer's covered equipment. TheVICP requires that, if a basic model fails verification testing conducted by the VICP,the manufacturer of the basic model must

remove it from production and sale if the verification testing results show it is
not in compliance with EPCA efficiency standards, or correctlyre-rate it if it complies with such standards. The
program must also provide that a participating manufacturer will be expelled from the VICP if it does not

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comply with suchrequirements, and that the VICP will report to the Department verification test results that find the performance of a basic model
not to meet EPCA efficiency standards. (Abasic model "fails" verification testing when theVICP has compared the basic model's efficiency rating resulting from completion ofthat testing with the efficiency rating claimed by the manufacturer, and has determined that the rating claimed by the manufacturer is not valid.) The VICP provides for penalties or other incentives to encourage manufacturers to report accurate and reliable efficiency ratings. The VICP provides to the Department on an annual basis, summary data that showsthe results of verification testing on each basic model. includingthe manufacturer's energy efficiency or use rating for the model, the measured energy efficiency or use from the verification testing

,and either the energv conservation standard for the tested basic model or a description of the model sufficient to enable the Department to determine the standard that applies to thebasic model. (See discussion in section 3 below)

Voluntary Independent Certification Programs which meet the above requirements could request the Department's approval by submitting documentation substantiating their compliance directly to the Department. Approval would remain in force for five
years, unless material changes occur in the program. In the event of changes, the VICP administrator would be required to notify the Department, which may at that time rescind the approval. At the end of any such five-year period, the VICP could request re-approval.

The VICP could submit compliance and certification paperwork to the Department on the behalf of participating manufacturers. d.iz/Janufi~turers 

### Not 

### Participating in



### a I'ICP. As discussed above,the Department proposes requiring manufacturers not participating in VICP's to meet more specific criteria for testing and AEDMs. With regard to testing, the sampling procedure referred to above would require a manufacturer to select a sample of sufficient sizeto ensure that: Any represented value of energv efficiency is no greater than the lower of the mean of the sample,or the lower 95 percent confidence limit of the true

mean divided by 0.95;and, Any represented value of energy usage is no less than the greater of the

mean of the sample,or the upper 95 percent confidence limit of the true

mean divided by 1.05. The Department also proposes that manufacturers of commercial heating, air conditioning andwater heating equipment who do not participate in a VICP approved by the Department, must conduct all performance testing of covered products at an independent laboratory, or under the supervision of independent testing personnel. This requirement would provide greater

assurance of the accuracy andreliability of suchtesting. It is also warranted by the lack of on-going verification ofthe efficiency ratings of non-participants in VICPs, andby DOE'Sproposal that verification testing by VICPs be conductedby an independent facility or under independent supervision. DOE is

. uncertain,however, as to whether sufficient numbers of independent testing laboratories and personnel exist
to enable manufacturers to satisfy this requirement, and whether it would otherwise impose undue burdens on manufacturers. Therefore,the Department encourages interested parties to address these issues in particular, including whetherthe Department should modify or omit this requirement in the proposed rule.



### e.Enforcement. The Department proposes that the enforcement provisions for commercial heating, air conditioning and water heating equipment would be for the most part virtually identical to those in 10CFR Part 430, except for the sampling plan for enforcement testing. The proposed sampling plan for enforcement testing would require a manufacturer to provide to DOE an initial sample size of
two units for enforcement testing,with a manufacturer's option of testing an additional two units, for a maximum sample size of four units. The Department could allow an exception to the sample size for very large units on

a case-by-case basis, such that only a single unit would be tested. Manufacturers would be permitted to request such an exception from the Department.

Participation in a VICP would not affect a manufacturer's obligations as described in the enforcement regulations.

3. Accommodation for Manufacturing Tolerances. Measurement Uncertainty and Small Sample Sizes

As indicated above,VICP's conduct verification testing to determine if a manufacturer's rating of a basic model is
accurate. The testing frequently consists of tests on a single unit,or at most two units, of the model. Following the tenets of probability, the measured energy efficiency or use derived from testing any small sample, such as one or two units of a basic model, may be higher or lower than the average for thebasic model population as a whole. These variations may be dueto manufacturing tolerances and/or measurement uncertainty.As a result, VICP's frequently employ a tolerance band by which a basic model is deemed not to fail verification testing unless its performance measured from thetesting is below the manufacturer's rating for the model b57 more than a set percentage. such as 5 percent. The justification for this tolerance band is to avoid a false conclusion that a basic model has been over-rated, based ontest results for a small sample.

The Department has generally required that compliance with the
energy conservation standards inEPCA be determined by whether the mean performance ofthe entire population of

a covered product meets the minimum standard applicable to that product. Under this approach, an individual unit of a product could have a measured efficiency less than the applicable minimum standard, due for exampleto variations in manufacturing and/or to measurement uncertainty, but the product would be in compliance as long

as the average efficiency of thebasic model population conformsto the minimum standard.Following once again the tenets of probability, this

means that if a sufficiently large number of units of a basic model were tested, the mean energy efficiency would meet the standard. To allow testing of small samples to establish compliance,the appliance standard rules in 10 CFR Part 430 incorporate specific statistical procedures for rating products for
energy efficiency and use. In this rulemaking, the Department proposes to require use of such strict statistical procedures by manufacturers to rate products not covered by a VICP. But it is not proposing them for compliance determinations for products covered by VICP's, largely because verification testing by a VICP helps insure accurate efficiency ratings.

Although the Department recognizes that some accommodation by a VICP is appropriate to allow for reasonable levels of manufacturing variation and measurement uncertainty in covered products, it is concerned that manufacturers might take advantage of a tolerance band on verification testing results by consistently over-rating the
energy use or efficiencies of basic models. Such a problem might be indicated,for example, if verification
test results were consistently skewed on the side of over-rating of basic models, rather than exhibiting a normal distribution whereby the proportion of

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### Mondav, December 13,

the verification testresults that were ofthe Proposed rule would not result in higher than the rating submitted by the environmental impacts. The Department manufacturer was approximately equal has therefore determined that the

to the proportion that were lower. The proposed rule is covered under the Department is concerned both that non- Categorical Exclusion found at complying products might be rated as paragraph A6 of appendix A to subpart being in compliance and that complying D ofthe Department's NEPA products might be over-rated. Regulations, which appliesto

To address these concerns, today's rulemakings that are strictly procedural. proposed rule containsprovisions to Accordingly, neither an environmental enable the Department to monitor the assessment nor an environmental extent, if any, to which the energy impact statement is required.

Or 

### use products 

### covered B. 

### Review UnderExecutive Order 12866, VICP's may be over-rated as a result of 

### ,'Regulatory Planning and tolerance bands for verification testing results. These provisions would require rule has 

### been determined
VICP's to submit to the Department to be a "significant regulatory action," annually data on verification as defined in section 3(f)ofExecutive testing results. Specifically, the Order 12866, "Regulatory Planning and proposed rule would require 

### VICP~~ to Review." 58 FR 51735 (October4,1993).
report the followingforeach verification Accofdingly,this action was not subject

test 

### or round of verificationtests 

### on a to review under the Executive Order by basic model: ~h~ 

### energy the Office of Information and Regulatory efficiency or use as measured by the Affairs. testing, (2)the energy efficiency or use C.

### Review Under theRegulatory rating submitted by the manufacturer for 

### Flexibility ~ct that basic model 

### (i.e., the rating that was The 

### Regulatory FlexibilityAct of evaluated by the testing),and (3)either 1980, 

### U.S,C, GO3, 

### requires the the energy conservation standard for preparation 

### of an initial regulatory that basic model or a brief description analysisforevery rule 

### which, of the basic model that would enable the law,the 

### agencv must 

### propose for Department to determine the applicable 

### p;blic comment,;nless the agency 

### standard' The data certifiesthat the rule,if manufacturer identification. If it will not have a significant economic 'PIJeared the Department from this impact on a substantial number of small information that over-rating was entities. A regulatory flexibility analysis occurring, the Department would examines the impact of the rule on

One Or ofthe small entities and considers alternative actions: wavs of reducing negative impacts. Pursue modification of all or part of The Small BusinessAdministration the VICP's provisions for verification considers an entity tobe a small testing; business if,together with its affiliates, it Revoke the Department's certification of the VICP; or employs fewer than a threshold number

Pursue enforcement procedures. of workers specified in 13CFR part 121. The estimated number of affected small 111. Procedural Requirements businesses are discussed below. The threshold number of employees 

### A.Review Under theNational Environmental PolicyAct of 1969 for SIC classification 3585, which includes warm-air furnaces, is 750.The EPCA prescribes energy efficiency Department estimates that between 25 standards and test procedures for and 39 firms manufacture warm-air commercial equipment, and in today's furnaces, and of these the majority have rule,the Department proposes to fewer than 750 employees and are implement these requirements for considered small businesses. The 

### commercial warm air furnaces and,to number of these small businesses that some extent, commercial heating, air manufacture commercial warm-air conditioning and water heating furnaces covered by the EPACT equipment generally. The Department standards (withcapacities of 225,000 has reviewed the proposed rule under Btu per hour and above) could be the National Environmental Policy Act smaller. of 1969(NEPA),42 U.S.C. §§4321 

### et The threshold number for SIC


### seq.,the regulations of the Council on classification 3585,which includes air Environmental Quality, 40 CFR parts conditioners and heat pumps, is also 1500-1508, the Department's 750.TheDepartment estimates that regulations for compliance with NEPA, approximately 31 firms manufacture 10CFR Part 1021,and the Secretarial covered commercial air conditioners Policy on the National Environmental and heat pumps, and of these, 14are Policy Act (June1994). Implementation considered small businesses. 

### 1999I

### Proposed Rules

Thethreshold number for SIC classification 3433,which includes commercial packaged boilers, and other non-electric heating equipment, is 500. The Department estimates that no more than 29 firms manufacture commercial packaged boilers, and ofthese, the majority are considered small businesses. The number of small businesses that manufacture commercial-sized packaged boilers covered by theEPACT standards (with capacities of 300,000Btu per hour and above) could be smaller. Thethreshold number for SIC classification 3589, which includes

. commercial water heaters, along with other service industry machinery not elsewhere classified, is also 500. The Department estimates that approximately 25 firms manufacture water heaters andunfired hot water storage tanks, and ofthese the majority

are considered smallbusinesses. The number of smallbusinesses that manufacture commercial-sized equipment covered by the EPACT standards could be smaller.

EPCA establishes efficiency standards for commercial heating, air conditioning and water heating equipment and requires the Department to prescribe test procedures that are accepted by industry and referenced in ASHRAEIIES Standard 90.1. For the most part, EPCA specifiesthe standards and test procedures incorporated in today's proposed rule.Therefore, any costs of complying with them are imposed by EPCA and not the rule. Moreover, today's proposed rule codifies testing procedures that are already generally employed by manufacturers, both large and small. The proposed rule also prescribes procedures for manufacturers to certify compliance with the standards and test procedures legislated by EPCA, using powers which were originally granted to the Secretary under NAECA, and extended by EPACT to require manufacturers of covered commercial equipment to submit information and reports for a variety of purposes, including insuring compliance with requirements. These certification requirements, as well as proposed enforcement provisions, are new for manufacturers of commercial equipment and will affect both small and large enterprises.

The Department has drafted the proposed rule to minimize the burden of compliance for manufacturers, and the rule relies heavily on current industry practice. Statistical sampling is permitted for testing, so as to minimize the testing burden. Manufacturers that participate in VICP's are also afforded considerable latitude in designing

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sampling plans to suit their individual circumstances, consistent with the requirement for reasonable degrees of reliability. To minimize testingburden further, manufacturers are permitted to

use analytical procedures, such as computer simulation,to determine the efficiencies of their products. Manufacturers are also given the option of certifying their products to the Department independently or through trade associations,which can minimize



## - costs by reporting on large numbers of individual products at one time. Finally, the certification forms and enforcement procedures are similar to those already required for consumer products,and several of the same manufacturers produce both consumer products and commercial equipment.

The cost of establishing compliance will depend on the number ofbasic models a manufacturer produces. The
cost of completing the compliance certification formshould be negligible

once testing has occurred. Testing cost depends on unit size, but could amount to several thousands of dollars per basic model. To the extent that manufacturers must already test their products for efficiency to assure that they meet the existing statutory efficiency standards, or for any other reason, they will not incur new costs in complying with today's proposed rule. The Department believes that any significant economic impact will fall only on those firms which do not now routinely test their products. The Department further believes that testkg is a widely accepted practice, and that companies that do not test are rare and do not represent a substantial number of small entities.

The Department has limited discretion to apply different requirements <&smallmanufacturers. EPCA mandates uniform standards and
test procedures for commercial equipment. In this regard, it is noteworthy that although EPCA contains a "small manufacturer exemption'' for consumer appliances (42USC 6295 (t)), it includes no such exemption for commercial and industrial equipment.

The Department invites public comment-on its conclusion that the incremental costs of complying with the proposed rule (not includingthe cost of requirements that are directly imposed by EPCA, such as the energy efficiency standards themselves) would not impose a significant impact on a substantial number of small businesses.



### D. Review Under Executive Order 131 32
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementingpolicies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The proposed rule published today would not regulate the States. The proposed mle would primarily codify energy efficiency standards and test procedures already established in EPCA for commercial equipment. DOE has determined that today's rule does not have a substantial direct effect on the States,on the relationship between the national government and the States,or on the distribution of power and responsibilities among the various levels of government. No further action is recluired bv Executive Order 13132.



### E. Review Under Executive Order 12630, "Governmental Actions and IntetTferenceWith Constitutionally Protected PropertyRights"

The Department has determined under Executive Order 12630, "Governmental Actions and Interference with Constitutionally Protected Property Rights," 52 FR 8859'(March 18, 1988), that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.



### F. Review Under the Paperwork Reduction Act

Today's notice of proposed rulemaking would impose information maintenance and reporting requirements on manufacturers of commercial heating, air conditioning and water heating equipment. An agency may not conduct or sponsor a collection of information unless the collection displays a currently valid OMB control number. (See 5 CFR 1320.5(b)).

The proposed rule will require manufacturers to maintain records concerning their determinations of the
energy consumption and efficiency of covered commercial equipment. DOE believes that this recordkeeping is
necessary for implementing and monitoring compliance with energy conservation standards and testing provisions mandated by EPCA. The proposed rule would also require manufacturers to make a one-time submission of a compliance statement, and to submit certification reports for existing basic models of covered commercial equipment,within 12 months after the publication of a final rule in the 

### Federal Register.A report covering a basic model need onlybe submitted once, stating that the manufacturer has determined that the basic model meets the applicable energy conservation standard.After the initial submission,manufacturers will have to submit a certification report for each

new basic model before the model may be distributed in commerce, orto certify compliance with a new or amended standard.

Theproposed collections .of information are necessary for implementing and monitoring compliance with the efficiency standards andtesting requirements for commercial equipment mandated by EPCA. In developing the proposed information collection requirements, DOE considered the views of stakeholders that were received at two public workshops held duringApril and October 1998, in written comments solicited in the notice of those meetings, and in subsequent informal contacts.

The following are the DOE estimates ofthe total annual reporting and recordkeeping burden imposed on the affected manufacturing firms for compliance with the proposed rule. The Department estimates that the number ofhours required to comply with the reporting and recordkeeping requirements in the proposed rule is approximately 200 to 300 hours per year per firm. For commercial warm-air furnaces, the estimated number of covered manufacturingfirms is between 25 and 39. The total annual reporting and recordkeeping burden from compliance with the proposed rule is expected to be from 5,000to 11,700 hours (25x200to 39x300 hours per year). For small and large commercial air conditioners and heat pumps, the estimated number of covered manufacturing firms is no more than 31. The total annual reporting and recordkeeping burden from compliance with the proposed rule is expected to be from 6,200to 9,300hours (31x200 to 31x300 hours per year). For commercial packaged boilers, the estimated number of covered manufacturing firms is no more than 29. The total annual reporting and recordkeeping burden from compliance with the proposed rule is expected to be from 5,800to 8,700 hours (29x200 to 29x300 hours per year). For commercial water heaters and unfired hot water storage tanks, the estimated number of covered manufacturing firms is nomore than 25, The total annual reporting and recordkeeping burden from compliance

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with the proposed rule is expected to be from 5,000to 7,500 hours (25x200 to 25x300 hours per year).

The above estimates include time for reviewing instructions, searching existing data sources,gathering and maintaining the data needed, and completing the collection of information.

In developing theburden estimates, DOE considered that each manufacturer is required to comply with the statutory energy efficiencv standardsfor each .type,f commercial equipment it is manufacturing on the effective date of the Act, and fGr each model it begins to manufacture after that date. The required certification would contain the type of information that many manufacturers already submit to voluntary programs or develop for the design or marketing of energy efficient commercial equipment.Those manufacturers should be able to comply with the certification required by the proposed rule without much additional burden. And,finally,the Department believes,based on manufacturers'
statements as to their determinations of product performance, that they already maintain the records of efficiency determinations that theproposed rule would require them to keep.

The Department has submitted these proposed information collection and recordkeeping requirements to the Office of Management and Budget for review and approval under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.The OMB previously approved Appendix A to Subpart F of Part 430, "Compliance Statement and Certification Report," and assigned OMB control number 1910-1400. The proposed rule would revise these forms
to cover certification of commercial heating, air conditioning and water heating equipment;facilitate the use of the certification report by third party representatives of covered product manufacturers; and in an attachment, specify forms similar to those that manufacturers are currently required to submit to DOE by 10CFR Part 430.62(a)(2).

The Department considers the information collection and recordkeeping called for in this proposed rule to be the least burdensome possible for meeting the legal requirements of EPCA and effectively enforcing the provisions of the law. However,the Department encourages public comments concerning the anticipated paperwork reporting burden. Send comments regarding recordkeeping or reporting burdens, or anv other aspect of information collection, to the Department in accordance with the instructions inthe DATES and ADDRESSES sections of thisnotice, aswell as in Section IV below. Send a copy ofthe
same comments to the Office of Information and Regulatory Affairs, Office ofManagement andBudget, Washington,DC 20503, marked "Attention: Desk Officer for DOE."



### G. Review Under Executive Order 12988, "Civil Justice Reform"

With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a)of Executive Order 12988,"Civil Justice Reform," 61FR 4729 (February 7, 19961, imposes on executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting

errors and ambiguity; (2)write regulations to minimize litigation; and (3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to thereview required by Section 3(a), Section 3(b)of the Executive Order specifically requires that Executive agencies make every reasonable effort to

ensurethat the regulation: (1)Clearly specifies the preemptive effect,if any: (2)clearly specifies any effect on existing Federal law or regulation; (3) provide a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifiesthe retroactive effect,if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c)of the Executive Order requires agencies to review regulations in light of applicable standards Section 3(a)and Section 3(b)to determine whether they

are met or it is unreasonable to meet one

or more of them.

The Department reviewed today's proposed rule under the standards of Section 3 ofthe Executive Order and determined that,to the extent permitted by law, it meets the requirements of those standards.



### H. Review Under Section 32 of the FederalEnergyAdministration Act of 1974

Under section 301 of the Department ofEnergy Organization Act (Pub.

### L. 95- 91),the Department ofEnergy must comply with section 32 of the Federal Energy Administration Act of 1974,as amended by the Federal Energy Administration Authorization Act of 1977. 15U.S.C. 788. Section 32 provides in essence that,where a proposed rule contains or involves use of commercial 

### 1999/Proposed Rules

standards, the notice of proposed rulemaking must inform thepublic of the use andbackground of such standards.

This rule proposed in this notice incorporates a several commercial standardswhich EPCA requires to be used. These include testing standards referenced by ASHRAEIIES Standard 90.1-1989 for the measurement of steady state thermal efficiency of commercial warm air furnaces. Because the Department has very limited discretion to depart from the standards referenced in ASHRAEIIES 90.1, Section 32 of the FEAA does not apply
to them.

Two commercial standards incorporated inthis rule are not referenced by ASHRAEIIES Standard 90.1-1989, and are thus their use is not required by EPCA. One is ASHRAE Standard 103-1993, " Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers." The Department proposes to adopt portions of this standard to obtain a suitable test procedure for condensing furnaces, which are not covered by ASHRAE/IES Standard 90.1-1989. The other is the Hvdronics Institute (HI) Standard "Testing and Rating Standard for Heating Boilers," which specifies a flue loss calculation procedure for oilfired equipment,also not covered by ASHRAEiIES Standard 90.1-1989. The Department has evaluated these two standards and is unable to conclude whether they fully comply with the requirements of section 32(b)of the Federal Energy Administration Act, i.e., that they were developed in a manner that which fully provides for public participation,comment and review.

As required by section 32(c)of the Federal Energy Administration Act, the Department will consult with the Attorney General and the Chairman of the Federal Trade Commission concerning the impact of these two standards on competition,prior to prescribing a final rule.



### I. Review Under Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 ("Unfunded Mandates Act") requires that the Department prepare a budgetary impact statementbefore promulgating a rule that includes a Federal mandate that may result in expenditureby state, local, and tribal governments, in the aggregate, orby the private sector,of $100 million or more in any one year. The budgetary impact statement must include: (i)Identification of the Federal law under which the rule is promulgated; (ii)a qualitative and

### Federal Register 1

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### /Monday, December 13, 1999

### /Proposed Rules 69609

quantitative assessment of anticipated
costs andbenefits ofthe Federal mandate and an analysis of the extent to which such coststo state, local,and tribal governments may be paid with Federal financial assistance; (iii)if feasible,estimates ofthe future compliance costs and of any disproportionate budgetary effects the mandate has on particular regions, communities,non-Federal units of government, or sectors ofthe economy; (iv)if feasible, estimates of the effect on the national economy;and (v)a description of the Department's prior consultation with elected representatives of state, local, and tribal governments and a summary and evaluation of the comments and concerns presented.

The Department has determined that the action proposed today does not include a Federal mandate that may result in estimated costs of $100 million

or more to state,local or to tribal governments in the aggregate or to the private sector. Therefore, the requirements of Sections 203 and 204 of the Unfunded Mandates Act donot apply to this action.

J. 

### Review UnderthePlain Language Directives

The President's Memorandum on "Plain Language in Government Writing." 63 FR 31885 (June10, 1998) directs each Federal agency to write all published rulemaking documents in plain language. The Memorandum includes general guidance on what constitutes "plain language." Plain language requirements will vary from one document to another, depending on the intended audience,but all plain language documents should be logically organized and clearly written.

DOE invites public comments on how
to make this proposed rule easier to understand. For example: Are the requirements in the rule clearly stated? would a different organization better suit your needs? Have we organized the material to suit your needs? Does the rule containjargon or unnecessary technical language? Can we improve the rule's format?



### k'.Review Under the Treasun,and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub.L. No. 105-277) requires federal agencies to issue a Family

. Policymaking Assessment for any proposed rule or policy that mav affect familywell-being. Today's proposal would not have any impact on the autonomy or the integrity ofthe family

as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

IV. 

### Public Comment

A. 

### Written CommentProcedures

The Department invites interested persons to participate in the proposed rulemaking by submitting data, comments, or information with respect to the issues set forth in today's rule to Mr. Cyrus Nasseri, at the address indicated at the beginning of the notice. The Department will consider all submittalsreceived by the date specified at the beginning of this notice in develo ing the final rule.

Under &e provisions of Title 10CFR 1004.11,any person submitting information which he or shebelieves to be confidential and exemptby law from public disclosure should submit one complete copy of the document and ten (10)copies, if possible, from which the information believed to be confidential hasbeen deleted. TheDepartment of Energy will make its own determination with regard to the confidential status of the information and treat it according to its determination.

Factors of interest to the Department when evaluatingrequests to treat as confidential information that has been submitted include: (I) A description of the items; (2) an indication as to whether and why such items are customarily treated as confidential within the industry; (3)whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5)an explanation of the competitive injury to the submitting
person which would result from public disclosure; (6)an indication as to when such information might lose its confidential character due to the
passage of time; and (7)why disclosure of the information would be contrary to the public interest.



### B. Public Hearing

1.Procedures for Submitting Requests To Speak

The beginning ofthis notice of proposed rulemaking indicates the time and place of the public hearing. The Department invites any person who has

an interest in today's notice of proposed rulemaking, or who is a representative of a group or class of persons that has

an interest in these proposed rules,to request an opportunityto make an oral presentation. If you would like to attend the public hearing, please notify Ms. Brenda Edwards-Jones at (202)586- 2945. You may also hand deliver requests to speak to the address indicated atthe beginning of the notice between the hours of 8:00a.m. and 4:00
p.m., Monday through Friday,except Federal holidays.

The person making the request should briefly describe the interest concerned and state why he or she,either individually or as a representative of a group or class of persons that has such an interest, is an appropriate spokesperson, and give a telephone number for contact.

The Department requests each person selected to be heard to submit an advance copy of his or her statement prior to the hearing as indicated at the beginning ofthis notice. The Department, at its discretion,may permit any person wishing to testify who cannot meet this requirement,to testify if that person has made alternative arrangements with the Office of Codes and Standards in advance. The letter making a request to give an oral presentation must ask for such alternative arrangements.

2. Conduct of Hearing

The Department will designate a Department official to preside at the hearing. The hearing will not be a judicial or an evidentiarv-type hearing, but the Department will conduct it in accordance with 5 U.S.C. 553 and Section 336 of the Act. The Department ofEnergy reserves the right to select the
persons to be heard at the hearing, to schedule the respective presentations, and to establish the procedures governing the conduct of the hearing.

TheDepartment will permit each participant to make a prepared general statement,limited to five (5)minutes, prior to the discussion of specifictopics. The general statement should not address these specific topics, but may

cover any other issues pertinent to this rulemaking. The Department will permit other participants to briefly comment on any general statements. The Department will then divide the hearing into segments,with each segment consisting of one or more topics covered by this notice, as follows:



### TestProcedures for Commercial Furnaces

ASHRAE Referenced Test Standards. Definition of Thermal Efficiency. Test Procedures for the Measurement of Energy Efficiency. OtherTest Standard Topics.

### 69610 

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### No. 238/

### Mondav, December 13. 1999/

### Pro~osed Rules

Certification andEnforcement Proceduresfor Commercial Heating, Air Conditioning and Water Heating Equipment

Certification. Alternative Methods for Determining Efficiency. Voluntary Independent Certification Programs. Non-Participating Manufacturers. Other Certification and Enforcement Topics.

The Department will introduce each topic with a brief summary of the relevant provisions ofthe proposed rule, and the significant issues involved. The Department will then permit participants in the hearing to make a prepared statement limited to five (5) minutes on that topic. At the end of all prepared statements on a topic, the Department will permit each participant
to briefly clarify his or her statement and comment on statements madeby others. The Department is particularly interested inhaving participants address in their statements the specific issues set forth below in Section IV-C, "Issues on which Comments are Requested," andparticipants should be prepared to answer questions by the Department and other participants at the public hearing concerning these issues. Representatives ofthe Department may also ask questions of participants concerning other matters relevant to the hearing. The total cumulative amount of time allowed for each participant to make prepared statements must be 20 minutes.

The official conducting the hearing will accept additional comments or questions from those attending,as time permits. The presiding official will

announce any further procedural rules,

or modification of the above procedures. needed for the proper conduct of the hearing.

The Department will arrange for a transcript of the hearing, and will retain the entirerecord of thisrulemaking, including the transcript, and will make it available for inspection in the Department's Freedom of Information Reading Room. Any person may purchase a copy of the transcript from the transcribing reporter.

C.Issues on Which Comments Are Requested

The Department of Energy is interested in receiving comments and/or data concerning the feasibility, workability and appropriateness of the
test procedures and certification and enforcement program proposed in today'srulemaking. Also, the Department welcomes discussion on improvements or alternativesto the proposed approaches. In particular, the Department requests comments on whether it should require manufacturers not participating in a VICP to have their equipment tested by, or under the supervision of, independent laboratories or personnel. And if sucha requirement isretained inthe final rule, should the Department impose specific competency criteria or qualification requirements to

ensure accurate and reliable testing? Such measures might include laboratory accreditation, professional engineering registration or other similar demonstration of testing competence.

List 

### ofSubjects

### in 10 

### CFR Part 431

Administrative practice and procedure,Energy conservation, Incorporationby reference.

Issued in Washington,DC, onNovember 10,1999.
Dan W. Reicher,
Assistant Secretary, EnergyEfjCiciencyand RenewableEnergy.

For the reasons set forth in the preamble, Title 10,Part 431 ofthe Code of Federal Regulations (CFR)is proposed to be amended as set forth below:

PART 431-ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIALAND INDUSTRIAL EQUIPMENT

1.The authority citation for part 431 continuesto read as follows:

Authority:42 U.S.C. 6311-6316

2. Subparts 

### H and 

### I are added to read as follows:
Subpart H-Definitions for Commercial HVAC & WH Products
Sec. 431.141 Definitions.
Subpart I--Commercial Warm Air Furnaces
431.151 Purpose and scope.

Test Procedures
431.161 Materials incorporated by reference. Sec.431.162 Uniform test method for the
measurement of energy efficiency of commercial warm air furnaces.
Energy Conservation Standards
431.171 Energy conservation standardsand their effective dates.
Subpart H-Definitions for Commercial HVAC & WH Products



### 5431.141 Definitions.

For purposes of subparts 

### I through P, words are defined as provided for in section 340 of the Act and as followsAct orEPCA means the Energy Policy and Conservation Act, 42 U.S.C. 6291- 6317.

Alternate efficiency determination method orAEDM means a method of calculating the efficiency of a commercial HVAC & WH product, in
terms ofthe descriptor used in or under section 342 (a)ofthe Act to state the
energy conservation standard for that product.

Basicmodelmeans all units of 

### a commercial HVAC & WH product manufactured by one manufacturer which have the same primary energy

source and which donot have any differing electrical, physical, or functional characteristics that affect
energy consumption.

Batch means a collection of production units of a basic model from which a test sample is selected.

Batch sizemeans the number of units in a batch.

Btu means British thermal unit, which is the quantity of heat required to raise the temperature of one pound of water

one degree Fahrenheit.

CommercialHVAC & WHproduct

means any article of a type which meets the statutory definition of "covered equipment" under section 340(1)(B)- (F)of the Act, andto which an energy conservation standard is applicable under section 342(a)of the Act.

Commercial warm air furnacemeans

a warm air furnace that is a commercial HVAC & WH product.

Covered equipment means industrial equipment of a type specified in section 340 ofthe Act.

DOE orthe Department means the Department of Energy.

Flue lossmeans the sum of the sensible heat and latent heat above room temperature of the flue gases leaving the appliance.

Independent laboratory means a laboratory or test facility not controlled by, affiliated with, having financial ties with, or under common control with the manufacturer or distributor of the covered equipment being evaluated.

Independent testingpersonnel means an individual, or an employee of an organization, not controlled by, affiliated with, having financial ties with, or under common control with the manufacturer or distributor of the covered equipment being evaluated.

Manufacturer's model numbermeans the identifier used by a manufacturer to uniquely identify the group of identical or essentially identical commercial equipment to which a particular unit belongs. The manufacturer's model number typically appears on equipment nameplates, in equipment catalogs and in other product advertising literature.

### Federal Register/Vol. 64, 

### No. 238/Monday, December 13, 1999lProposed Rules 69611

Natural gas means natural gas as procedures. TheDepartment 

### 9431 .I62 Uniform test methodfor the defined by the Federal Power incorporates the material as it exists on measurementof energy efficiencyof
Commission. the date ofthe approval and a notice of commercia' warm air furnaces.



### Private labelermeans an owner ofa any change in the material will be (a)This section coversthe test brand or trade mark onthe label ofa published in the Federal Register. procedures you must follow if,pursuant commercial HVAC & 

### WH product which (b)~ist oftest procedures to EPCA, you are measuring the steady bears a private label. A commercial incorporatedby reference. state thermal efficiency of a gas-fired
HVAC & WH product bears a private (1) American National Standards commercial warm air furnace or any oillabel if: Institute (ANSI)Standard 221.47-1993, fired 

### capacity commercial of 225,000 warm

Btu/h air



### or furnace,

more. with (I) Such product (or its container) is -~~~-~i~~d central 

### F~~~~~~~.~ Where this section prescribes use of labeled with 

### the brand Or 

### trademark of (2) Underwriters Laboratories (UL) ANSI standard z21.47-1993 or 

### UL
a person 

### than a 

### manufacturer of Standard 727-1994. "Standard for Oil- 

### standard 727-1994, 

### perform for suchproduct, Fired Central Furnaces. "

(2) The person with whose brand or purposes ofthis section only the trademark such product (or container) is (3)Sections 8.2.2, 11.2,and 11.2.1, procedures to the labeled has authorized or caused such and accompanyingFOrrns715 and

7213 measurement of steady-stateefficiendy. product to be so labeled, and ofthe ~ydronics Institute (HI)StaIidard 

### (b) Test setup. (I)

### Testsetupfor Gas- (3) Thebrand or trademark of a "Testing and Rating Standard for

, 

### Fired Commercial WarmAir Furnaces. manufacturer of suchproduct does not Heating Boilers," 6th Edition, 1989. The test setup,including flue

appear on such label. (4) Sections 7.2.2.4,7.8, 9.2,and requirement, instrumentation,test



### Secretaymeans the Secretary of the 11.3.7ofthe American Society of conditions,and measurements for Department of Energy. Heating, Refrigerating and Air- determining the thermal efficiency of



### State means a State,the District of ConditioningEngineers,Inc. (ASHRAE) gas-fired warm air furnaces with rated Columbia,Puerto Rico, or any territory Standard 103-1993, " Method ofTesting input of 225,000 Btu/h or more, is as or possession of the United States. for Annual Fuel Utilization Efficiency of specified in Sections 1.1(Scope),2.1



### State regulation means a law or Residential Central Furnaces and (General),2.2 (Basic Test regulation of a State or political Boilers." Arrangements),2.3 (Test Ducts and subdivision thereof. (c)

### Availability ofreferences. (1) Plenums).2.4 (Test Gases),2.5 (Test



### Thermal efficiency means the 

### Inspection of test procedures. The test Pressures and Burner Adjustments),2.6 efficiency descriptor for warm air procedures incorporated by reference (Static Pressure and Air Flow furnaces and equals 100 percent minus are available for inspection at: Adjustments),2.37 (ThermalEfficiency), percent flue loss determined using test (i)Officeofthe Federa] Register 800 and 4.2.1 (Basic Test Arrangements for procedures prescribed under 431.162. North Capitol Street,NW, Suite 700, Direct Vent Control Furnaces) of the 

### CZiarm air furnace means a self- Washington,DC 20002. American National StandardsInstitute contained oil-fired or gas-fired furnace (ii)U.S. 

### D~~~~~~~~ ofE~~~~~, office (ANSI)Standard for Gas-Fired Central designed to S~PP~?' heated air through ofEnergy Efficiency and Renewable Furnaces, ANSI Standard 221.47-1993. ducts to spaces that require it and E~~~~~, ~~~~i~~~ and ~~~k~~~, 'e~est The thermal efficiencytest must be includes combination warm air furnace1 procedures and certification conducted only at the normal inlet test electric air conditioning units but does ~~~~i~~~~~~~ for~~~~~~~i~l 

## warm ~i~ pressure, as specified in Section 2.5.1of

not include unit heaters and duct Furnaces," Docket No. EE-RMlTP-99- ANSI 221.47-1993, and at the furnaces. 450, 1000Independence Avenue, SW, maximum Btu rating Washington,DC 20585. specified by the manufacturer for the Subpart I-Commercial Warm Air (2)Obtaining copies of Standards. product being tested. Furnaces (2) 

### Test setup for Oil-Fired Anyone can obtain a copy ofstandards 

### Commercial WormAir Furnaces,The $431 .I51 Purposeand scope. incorporated by reference from the test setup, including flue requirement.

This subpart contains energy following sources: instrumentation,test condition, and conservation requirements for certain (i) Request the ASHRAE measurement for measuring the thermal commercial warm air furnaces,pursuant Standardsfromthe American Society of efficiencyof oil-fired warm air furnaces to Part C: of Title 111 of the Energy Policy Heating, Refrigerating.and Air- with rated input of 225,000 Btulh or and Conservation Act, as amended, 42 Conditioning Engineers, Inc., 1971 more, is as specified in sections 1 U.S.C 6311-6316. Tullie Circle, NE, Atlanta, GA 30329, or 

## (scope), 2 (units ofMeasurement),3 http:l/www.ashrae.org/book/ Test Procedures bookshop.htm. (Glossary),37 (General), 38 and 39 (Test Installation), 40 (Instrumentation, $431 .I61 Materials incorporated by (ii)Request copies of the ANSI except 40.4 and 40.6.2 through 40.6.7 reference. Standards from Global Engineering which are not required for the thermal

(a) The Department incorporates by Documents, 15Inverness Way East, efficiency test), 41 (InitialTest reference the following test procedures Englewood* CO 801129 or htt~:// Conditions),42 (CombustionTestwhich are not otherwise set forth in this global.ihs.com/, or http:// Burner and Furnace),43.2 (Operation part 431,TheDirector ofthe Federal webstore.ansi.org/ansidocstore/. Tests),44 (Limit Control Cutout Test), Register has approved the material (iii)Request copies of the UL 45 (Continuity of Operation Test),and listed in paragraph (b)of this section for Standards from Global Engineering 46 (AirFlow,Downflow or Horizontal incorporation by reference in Documents, 15Inverness Way East, Furnace Test),of the Underwriters accordance with 5 U.S.C. 552(a)and 1 Englewood,CO 80112, or http:// Laboratories Standard for Oil-Fired CFR Part 51. Any subsequent global.ihs.com/. Central Furnaces, UL Standard 727- amendment to this material by the (iv) Request copies of the HI 1994. A fuel oil analysis for heating standard-setting organization will not Standards from the Hydronics Institute value, hydrogen content, carbon affect the DOE test procedures unless Inc., 35 Russo Place, Berkeley Heights, content,pounds per gallon, andAPI and until DOE amends its test N.J. 07922. gravity must be conducted as specified

### 1999/

### Proposed Rules 

### 69612 

### Federal Register/

### Vol.

in section 8.2.2 ofthe 1989 Hydronics Institute Testing andRating Standard for Heating Boilers. The steady-state combustion conditions,specified in section42.1 of

### UL 727-1994, are attained as evidenced by variationsin the measured flue gas temperature of
not more than 5 OF for three consecutive readings taken 15minutes apart.

(c)

### Additional testmeasurements. (1) 

### Measurement ofFlue COz (Carbon Dioxide) for Oil-Fired Furnaces. In addition to the flue temperature
measurement as specified in section 40.6.8 of UL Standard 727,you must locate one or two sampling tubes within six inches downstream from the flue temperature probe (as indicated on Figure 40.3 of UL Standard 727).If you

use an open end tube, it must project intothe flue one-third of the chimney connector diameter. If you use other methods of sampling CO?,you must place the sampling tube so as to obtain

an average sample. There must be no air leak between the temperature probe and the sampling tube location. You must collect the flue gas sample at the same time the flue gas temperature is recorded. The C02 concentration of the flue gas must be as specified by the manufacturer for the product being tested, with a tolerance of +0.1%. You
must determine the flue GOzwith an instrument providing a reading with an

error no greater than 10.1 %. (2)

### Procedurefor theMeasurement of Condensate for a Gas-Fired Condensing Furnace. The test procedure for the
measurement of the condensate from the flue gas under steady state operation
must be conducted as specified in sections 7.2.2.4,7.8 and 9.2 of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (ASHRAE)Standard 103-1993 under the maximum rated input conditions. You must conduct this condensate measurement for an additional 30 minutes of steady state operation after the completion of the steady state thermal efficiency test specified in paragraph (b)of this section.

(d)

### Calculations of Thermal Efficiency. (1) 

### Gas-Fired Commercial WarmAir Furnaces. You must use the calculation procedure as specified in section 2.37, Thermal Efficiency, of ANSI Standard 221.47-1993,

(2)

### Oil-Fired Commercial WarmAir Furnaces. You must calculate the percent flue loss and the steady state efficiencyby following the procedure specified in section 11.2(Combustion Efficiency Test),and Forms 715 and 721, of the 1989 Hydronics Institute (HI) Testing and Heating Standard for 

### 64, 

### No. 238/Monday, December 13,

Heating Boilers. The thermal efficiency
must be calculated as:

Thermal Efficiency (percent)= 100 percent-flue loss (percent).

(e)

### Procedurefor the Calculation of theAdditional Heat Gain and Heat loss. and Adjustment to the Thermal Efjciciencyfor a Condensing Furnace. (1) You must calculatethe latent heat gain from the condensation of the water vapor in the flue gas, and calculate heat loss due to the flue condensate down the drain, as specified in sections 11.3.7.1and 11.3.7.2ofASHRAE Standard 103-1993, with the exception that in the equation for the heat loss due to hot condensate flowing down the drain in section 11.3.7.2,the assumed indoor temperature of 70 OF and the temperature term TOAmust be replaced by the measured room temperature as specified in section 2.2.8 of ANSI 221.47-1993.

(2)

### Adjustment to the Thermal Efficiencyfor Condensing Furnace. You
must adjust the thermal efficiency as calculated in paragraph (d)(l) of this section by adding the latent gain from the condensation of the water vapor in the flue gas and subtracting the heat loss (dueto the flue condensate down the drain)to obtain the thermal efficiency of a condensing furnace.
Energy Conservation Standards



### 5431.171 Energy conservation standards andtheir effective dates.

Each commercial warm air furnace manufactured on or after January 1. 1994must meet the following energy efficiency standard levels:

(a)For a gas-fired commercial warm air furnace with capacity of 225,000 Btu
per hour or more, the thermal efficiency
at the maximum rated capacity must be
not less than 80percent.

(b)For an oil-fired commercial warm air furnace with capacity of 225,000 Btu per hour or more, the thermal efficiency
at the maximum rated capacity must be
not less than 81percent.

3. Subparts J, K,Land M are added to read as follows: Subpart J-Commercial Air Conditionersand Heat Pumps [Reserved]

Subpart K-Commercial Packaged Boilers [Reserved]

Subpart L-Commercial Water Heaters and Unfired Hot Water Storage Tanks [Reserved]

Subpart M-Methods of Determining Efficiencyof Commercial HVAC & WH Products.
Sec. 431.481 Requirements applicable to all manufacturers. 431.482 Additional requirements applicable
to VICP participants. 431.483 Additional requirements applicable
to non-VICPparticipants. 431.484 Voluntary independent certification programs (VICP).
Subpart M-Methods of Determining Efficiency of CommercialHVAC 

### 81WH Products.


### 5431.481 Requirements applicableto all manufacturers.

(a)

### General.A manufacturer of a commercial HVAC & WH product may not distribute anybasic model of such product in commerce unless the manufacturer has determined the efficiency ofthebasic model either from testing of the basic model or from application of an alternative efficiency determination method (AEDM)to the basic model, in accordance with the requirements of this section. (For
purposes of this subpart, the "efficiency" of a commercial HVAC & WH product means the energy efficiency or energy use of that product, expressed in terms of the descriptor that is used in or under Section 342(a)of the Act to state the energy conservation standard for that product.)

(b)

### Testing.If you test a basic model pursuant to this section to determine its efficiency or to validate an AEDM, you must:

(1) Select at random the unit(s)to be tested, which must be representative of the basic model,

(2)Perform the testing in accordance with the applicable DOE test procedure,

(3)Meet industry standards for the
accuracy of testing and of rating results for the equipment being tested, and

(4)Meet the requirements of either section 431.482(b)or section 431.483(a), whichever is applicable.

(c) 

### Alternative efficiency determination methods.

(1) 

### Criteria an AEDIM

### must satish. You may not applv an AEDM to a basic model to determine its efficiency pursuant to this subpart unless,

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### /Monday, December 13, 1999/Proposed Rules 69613

(i)The AEDM is derived from a mathematical model that accurately represents the energy consumption characteristics ofthebasic model, and

(ii) TheAEDM is based on engineering or statistical analysis, computer simulation or modeling

,or other analytic evaluation of performance data.

(2)

### Subsequent verification ofan AEDM. If you have used anAEDM pursuant to this subpart,

(i)You must have available for inspection by the Department records showing:

(A)The method or methods used; (B)The mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based, and

(C)Complete test data, product information, and related information that you generated or acquired under paragraph (c)(l) ofthis section and 

### 55431.482(c)or 431.483(b)(l), as applicable, and

(D)The calculations used to determine the average efficiency and
energy consumption of each basic model to which an AEDM was applied.

(ii)If requested by the Department,
you must:

(A)Conduct simulations to predict the performance of particular basic models of the commercial HVAC & WH product, or

(B)Provide analyses of previous simulations conducted by you,or

(C)Conduct sampletesting of basic models selected by the Department, or

(D)Conduct a combination of these.



### 5431.482 Additional requirements applicable to VICP participants.

(a)

### Description of VICP

### participant. For purposes of this subpart,a manufacturer that participates in a Voluntary Independent Certification Program (VICP)approved by the Department for a commercial HVAC & WH product, as described in 5431.484, and that complies with all requirements imposed by that program, is a "VICP participant" with respect to that product. (b)

### Testing.A VICP participant that
tests a basic model pursuant to this subpart must use statistically valid and accurate methods to arrive at the efficiency rating of such basic model.

(c)

### Alternative efficiency determination methods. Before using an AEDM to determine the efficiency of a basic model pursuant to this subpart,a VICP participant must apply the AEDM
to one or more basic models that have been tested in accordance with 5s431.481(b)and 431.482(b)of this subpart,and thepredicted efficiency calculated for each suchbasic model from application ofthe AEDM must be within five percent ofthe efficiency determined from testing that basic model. In addition, the predicted efficiency(ies)calculated for the tested basic model(s)must on average be within onepercent ofthe efficiency(ies) determined from testing suchbasic model(s).



### 9431'483 Additional requirements applicable to non-VICP participants.

If you are a manufacturer that is not

a VICP participant with respect to a particular commercial WAC& WH product, you must meet the following requirements as to that product. (a)

### Testing.You must perform any testing of a basic model pursuant to this subpart under the supervision of independent testing personnel, or have suchtesting performed at an independent laboratory. In addition,
you must test a sufficient number of units of the basic model, and the efficiency rating of the basic model must be determined, such that,
(1) Any represented value of energy efficiency is no greater than the lower of the mean of the sample,or the lower 95 percent confidence limit of the true

mean divided by 0.95,and,

(2)Any represented value of energy usage is no less than the greater of the

mean of the sample,or the upper 95 percent confidence limit of the true

mean divided by 1.05.

(b)

### Alternative efficiency determination methods.Before using an AEDM to determine the efficiency of a basic model pursuant to this subpart,
you must first,
(1) Apply the AEDM to three or more basic models that have been tested in accordance with 55431.481(b)and 431.483(a)of this subpart. The predicted efficiency calculated for each such basic model from application of the AEDM
must be within five percent of the efficiency determined from testing that basic model, and the predicted efficiencies calculated for the tested basic models must on average be within

one percent of the efficiencies determined from testing such basic models; and

(2)Obtain from the Department approval of the AEDM. The Department will provide such approval after receiving from you documentation which establishes that the AEDM satisfies the requirements of 55431.481(~)(1) and 431.483(b)(l) of this subpart. 5431.484 Voluntary independent certification programs (VICP).

(a)TheDepartment will approve a voluntary independent certification
program (VICP) for a commercial HVAC
& WH product if the VICP meets all of the following criteria:

(I) The program publishes its operating procedures in written form, and permits participation by all manufacturers of products covered by the program so long as they comply with the VICP's requirements concerning operation of the.program.

(2)The program requires each participant to report to the program the efficiency of each basic model that the participant manufactures and that is covered by the program. The participant must determine such efficiency based
on measurement ofthebasic model's performance.

(3)The program publishes the efficiency ratings received from each participant, or otherwise makes the ratings readily availableto the general public andto the Department. (4) The program conducts periodic verification testing on listed equipment, by testing the efficiency of each basic model at least once every five years and comparing its rated efficiency to the test results.

(5)An independent laboratory conducts the tests,or independent laboratory personnel supervise the tests.

(6)For verification testing,the testing personnel select units randomly from the manufacturer's stock.

(7)The program uses efficiency testing in accordance with applicable DOE test procedures.

(8)The program's verification testing
meets industry standards for the
accuracy of testing and of rating results for the equipment being tested, and the program satisfactorily describes how it
meets these standards.

(9)The program has an appropriate standard for determining whether the efficiency rating a manufacturer claims for a roduct is valid.

(10y~he program requires that, if a basic model fails verification testing conducted by the VICP, the manufacturer of the basic model must

remove it from production and sale if the verification testing results show it is
not in compliancewith EPCA efficiency standards, or correctly re-rate it if it complies with such standards. The
program must also provide that a participating manufacturer will be expelled from the VICP if it does not comply with suchrequirements, and that the VICP will report to the Department verification test results that find the performance of a basic model
not to meet EPCA efficiency standards.

### 69614 

### Federal RegisterIVol. 

### 64, No. 238/Monday, December 13, 1999lProposed Rules

(Abasic model "fails" verification 431.509 Remedies. (1) The term "new covered testing when the VICP has compared the 431.510 Hearings and appeals. equipment" means covered equipment basic model's efficiency rating resulting Subpart P-General provisionsfor the title of which has not passed to a from completion ofthat testing with the Commercial HVAC& WH Products. purchaser who buys such equipment for efficiency rating claimed by the 431.601 Petitions for waiver, and purposes otherthan manufacturer, and has determined that applications for interim waiver, of test (i)Reselling such equipment, or the rating claimed by the manufacturer procedure. (ii)Leasing such equipment for a is not valid.) 431.602 Preemption of state regulations for period in excess ofone year; and

(11) The program provides for commercial InAC& WH products. (2)The term "knowingly" means penalties or other incentives to 431.603 Maintenance of records. (i)Having actual knowledge, or encourage manufacturers to report 431.604 Imported equipment. (ii)Presumed to have knowledge

accurate and reliable efficiency ratings. 431.605 equipment. deemed to be possessed by a reasonable

(12)The program provides to the 431.606 Subpoena. person who acts inthe circumstances, manufacturer copies of all records of 431.607 including knowledge obtainable upon completed verification testing Subpart &Certification and the exercise of due care. performed on the manufacturer's Enforcement Provisions Applicableto 5431.503 compliance certification; equipment covered by the program.

(13)The VICP provides to the Commercial HVAC & WH Products general requirements. Department annually data on the results 5431.501 Purpose and scope. (a)

### General.Beginning twelve months

of its verification testing during the after the publication of the applicable This subpart sets out how previous 12months, including the test procedures,if you are a manufacturers andprivate labelers can manufacturer 

### or private labeler,

### you following for each basic model on certify that their commercial HVAC & 

### may not distribute in 

### commerce any which the VICP has performed WH products comply with the verification testing: basic model of a commercial HVAC & applicable energy efficiency standards, WH product subject to an 

### energy (i)The measured efficiencyfromthe and how the Department will enforce verification testing, conservation standard under section

(ii) The manufacturer's efficiency theprovisions ofthe Act and 10CFR 342(a)

### ofthe unless 

### you have "tiny. and Part 431 

### such products. certified that thebasic model complies

111 Either the applicable energy 5431.502 Prohibitedacts. with therequirements of the applicable conservation standard or a description (a)Each ofthe followingis a standards, as follows: (1) Submitto the Department a of

### the sufficientto 

### the prohibited act under sections 332 and 

### compliance statement,as 

### described in De artment to determine such standard. 345 of

### the Act:



# 8) An organization seeking the s431.504,and Department's approval of its voluntary (1) Failure to permit access to, or (2)Submit to the Department, or have independent certification program must copying of records required to be an authorized third party (suchas a submit to the Department written under the Act 

### and this part Or trade association or VICp) submitto the information which demonstrates that failureto make reports or provide other Department,a certification

### report as the program meets the requirements of information required to be supplied described in §431.505. paragraph (a)of this section. Approval under the Act and this part; (b)

### Newmodels. (1) Prior to or will remain in force for five years, (2)Failure of a manufacturer to concurrent with distributing in unless material &anges occur in the at his a commerce any new model of a
program. In the event of changes,the number ofunits ofa 

### covered commercial HVAC & WH product, you VICP must promptly notify the commercial equipment to a test must submit all information required Department, which may then rescind or laboratory designatedby the Secretary; under paragraph (a)(2) of this section for continue the approval. TheDepartment (3) a manufacturer permit that model

. may at any time rescind its approval of a representativedesignated by the (2)Any change to an existing basic

a VICP upon determining that the Secretary to observe any testing required model which affectsenergy program does not meet therequirements the Actand this part, and to inspect consumption will constitute the
of para raph (a)of this section. the results of such testing; and addition of a new basic model. If such

4. Sutparts

### N, 0, and P are added to (4)Distribution in commerce by a a change neither alters compliancewith read as follows: manufacturer or private labeler ofany the applicable energy conservation

new covered equipment which is not in standard for the new basic model, nor Subpart N-Labeling (Reserved) compliance with an applicable energy will be abasis for giving the new basic efficiency standard prescribed under the model an efficiencyrating that differs Subpart 0---Certification and Enforcement Act 

### and this part, Provisions Applicableto Commercial HVAC from the rating of the existing basic

& WH Products (b)In accordance with sections 333 model,then you need not measure the and 345 of the Act, any person who Sec. efficiency of the new basic model.

431.501 Purpose and scope. knowingly violates any provision of However,you must submit all

431.502 Prohibited acts. paragraph (a)of this section may be information required by 

# s431.503(a)(2)

431.503 Compliance certification;general subjectto assessment ofa civil penalty forthe new basic model. requirements. of no more than $110 for each violation. (c)

### Discontinued models. (1) A model
431.504 Compliance certification; Each violation of paragraph (a)(4) ofthis is discontinued when its production has compliance statement. section will constitute a separate ceased and it is no longer being 431.505 Compliance certification; violation with respect to each unit of distributed. certification report. covered equipment, and each day of 431.506 Enforcement. (2)You (oran authorized

431.507 Enforcement: compliance noncompliance with paragraphs (a)(l) representative) must report such models

determination procedure. through (3)of this section will to the Department at the address and in

431.508 Cessation of distribution of a basic constitute a separate violation. the manner described in paragraph (e)of

model. (c)For purposes of this section, this section. In such a report, for each

### Federal Register 1Vol. 

### 64, No. 

### 238

### /Monday, December 13,

model, you must list: equipment type, [Companyname]submits this compliance the manufacturer's name,theprivate Statementunder 10CFRPart 431 (Energy
labeler name(s),if applicable, andthe for
manufacturer's model number(s). Equipment)and Part Cofthe Energy Policy and ConservationAct (Pub.L. 94-163), and 

### Amendment 

### 'f If amendmentsthereto. I am signingthis on information in a compliance statement behalfofand as a responsibleofficialofthe

or certification report previously above named company.All basic models of submitted to theDepartment under this [thecommercialHVAC & WH product section is found tobe incorrect,you (or coveredby this statement1that the company

an authorized representative) must manufacturescomply with the applicable
submit the corrected information to the energyconservation standards.We have Department atthe address and in the with the testing requirements (prescribed in 10CFRPart 431) manner described inparagraph (el of inmakingthisdetermination, and in this section. determining the energy efficiencyor energy

(e)

### Correspondence with the use that is set forthin the certification report 

### Department. Send any correspondence for each ofthese basic models. All by certified mail to: Department of information in that report and in this

. Energy, Office ofEnergy Efficiency and statementis true, accurate, and complete.
Renewable Energy, Office of Codes and The is aware the penalties Standards, 1000 

### IndependenceAvenue, associated with violations oftheAct and the regulations thereunder, and is also awareof SW, Washington, DC 20585-0121. the provisionscontained in 18U.S.C. 1001,

(f)Notices designating a change of which prohibitsknowinglymaking false third party representative mustbe sent statementto the Federal Government. to the Department at the address and in Signature

## ofcompany Official: the manner described in paragraph (e)of this section. Name: Title: 

### 9431.504 Compliance certification; Firm or Organization: compliancestatement. Date:

(a)You must send your compliance Name of Person to Contact forFurther
statement to the Department inthe Information:

manner described in 

### 5431.503 (e) Name: signed by a corporate officer,and in the Address: format set forth in the paragraph (b)of Tele~honeNumber:
this section. Facsimile Number:

(b)

### Statement contents. Your Third Party Representative: compliance statement must certifqrthat: If a third party organization,under the

(1)Each basic model 

### you manufacture provisions of 10CFR Part 431,prepared any
ofthe 

### commercial HVAC & WH 

### product part of this ComplianceCertification,or is authorized to submit any certification covered the statement r,port(s) forthe company,providethe complies with the applicable energy followinginformation for the company conservation standards; officialwho authorized third party

(2)All representations as to efficiency representations: in your compliance certification and h'ame: certificationreport(s)are based on 'Title: testing andloruse of an AEDM in Address:
accordance with 10CFR part 431; TelephoneNumber: Facsimile Number: (3) informationreported in "Our The third party organization authorizedto act compliance statement and certification as representative: report(s)is true, accurate and complete; Third PartyOrganization: and

(4)You are aware of the penalties Name of ResponsiblePerson at that associated with violations of the Act Organization: and the regulations thereunder, and of

- 18U.S.C. 1001 which prohibits Address: knowingly making false statementsto Number:
the Federal Government. Facsimile Number:

(c)

### Statementformat. You must use 

### 5431.505 Compliance certification; the followingformat for your certification report. compliance statement: (a)You, or an authorized third party StatementofComplianceWith Energy acting on your behalf, must send your ConservationStandards for Commercial certification report(s)to the Department HVAC & WH Products in the manner specified in 

### 5431.503(e), Product: signed by an official or your company Manufacturer's Name and Address: or the third party representative. The Department will also accept a computer diskette which contains the certification

-- report. 1999 /Proposed Rules 

### 69615

(b)

### Report contents. The certification report must includethe equipmenttype, manufacturer's name,private labeler name(s)(ifapplicable),the manufacturer's model number(s),and

(1)For gas-fired and oil-fired commercial warm air furnaces (witha capacity of 225,000 Btu per hour or more),theminimum thermal efficiency
at the maximum rated ca acity.

(2)For gas-fired and oiffired commercial packaged boilers, the minimum combustion efficiency at the maximum rated ca acity

(3)For air-coo1eJthre~-phase electric central air conditioners and central air conditioning heat pumps lessthan 65,000Btu per hour (coolingcapacity), split systems or single package,the seasonal energy efficiency ratio and the heating seasonalperformance factor;

(4)For air-cooled central air conditioners and central air conditioning heat pumps at or above 65,000Btu per hour (cooling capacity) and less than 135,000Btu per hour (coolingcapacity),the energy efficiency ratio (at a temperature rating of 95°F dry bulb temperature) and the coefficient of performance in theheating mode (at a temperature rating of 47°F drybulb tem erature);

(57

## or water-cooled, evaporativelycooled andwater-source central air conditioners and central air conditioning heat pumps of less than 135,000Btu per hour (coolingcapacity), the energy efficiency ratio (at a standard rating of 95°F dry bulb temperature, for evaporatively cooled equipment, and 85°F entering water temperature, for
water-source and water-cooled equipment);

(6)For water-source heat pumps less than 135,000Btu per hour (cooling capacity),the coefficient of performance in the heating mode (ata standard rating of 70°F enteringwater tern erature);

(7)For air-cooled centrafair conditioners and central air conditioning heat pumps at or above 135,000Btu per hour (cooling capacity) and less than 240,000 Btu per hour (coolingcapacity),the energy efficiency ratio (at a standard rating of 95°F dry bulb temperature) and the coefficient of performance in the heating mode (ata high temperature rating of 47°F dry bulb
tem erature);

(87For water- and evaporativelycooled central air conditioners and central air conditioning heat pumps at

or above 135.000Btu per hour (cooling capacity) and less than 240,000Btu per hour (coolingcapacity), the energy efficiency ratio (accordingtoARI Standard 3401360-93);

(9)For packaged terminal air conditioners,the energy efficiency ratio

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### Proposed Rules 69616 

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### Vol.

(EER)in the cooling mode (at a temperature rating of 95°F dry bulb temperature);

(10)For packaged terminal heat pumps, the energy efficiency ratio (EER) in the cooling mode (at a temperature rating of 95°Fdry bulb temperature), andthe coefficient of performance (COP)inthe heating mode (at a standard rating of 47°F dry bulb temperature); (11) For storage water heaters (except those having more than 140gallon storage capacity,not having a standing pilot light, and having the tank surface

area thermally insulated to R-12.5) manufactured on or after January 1, 1994,the maximum standby loss, in percent per hour; (12)For instantaneouswater heaters (except those having more than 140 gallon storage capacity, not having a standing pilot light, and having the tank surface area thermally insulated to R12.5),the minimum thermal efficiency, and for storage volumes of 10gallons or more,the maximum standby loss, in percent per hour; and (13)For unfired hot water storage tanks (except those having more than 140gallon storage capacity, and having the tank surface area thermally insulated to R-12.5), the maximum heat loss in Btus per hour square foot of nominal tank surface area.

(c)One possible format for a certification report is as follows:

Certificationreport for commercial equipment: (Insertthe Name of Equipment)
Dated: Signature of Company Official or Third P* Representative:

Equipment Type: Manufacturer: Private Labeler (if applicable):

For New or Amended Basic Models:

(Provide specific equipment information including,for each basic model, the manufacturer's model number(s)and the information required in s431.505 (b)).
For Discontinued Basic Models:

(Provide manufacturer's model numher(s)).



### 5431.506 Enforcement.

(a)

### Test notice. Upon receiving information in writing concerning the
energy performance of a particular commercial HVAC & WH product sold by a manufacturer or private labeler which indicates that the product may not be in compliance with the applicable energy performance standard, the Secretary may conduct a review of test records. The Secretary
may then conduct enforcement testing of that equipmentby means of a test notice addressed to the manufacturer or private labeler in accordance with the following requirements: (1) The test notice procedure will only be followed after the Secretary or his1 her designated representative has examined the underlying test data (or, where appropriate, data as to use of an alternative efficiency determination method) provided by the manufacturer, and afterthe manufacturer hasbeen offered the opportunity to meet with the Department to verify compliance with the applicable efficiency standard.In addition,where compliance of abasic model was certified based on an AEDM, the Department has the discretion to pursue the provisions of 

### 5431.481(c)(2)(ii) prior to invoking the
test notice procedure. A representative designated by the Secretary must be permitted to observe any reverification procedures undertaken accordingto this subpart and to inspectthe results of such reverification.

(2)The test notice will be signedby the Secretary or hislher designee and will be mailed or delivered by the Department to the plant manager or other responsible official designated by the manufacturer.

(3) The test notice will specify the model or basic model to be selected for testing, the number of units to be tested, the method for selecting these units,the date and time at which testing is to begin, the date by which testing is scheduled to be completed and the facility at which testing will be conducted.The test notice may also provide for situations in which the selected basic model is unavailable for testing, and it may include alternative basic models.

(4)The Secretary may require in the
test notice that the manufacturer ship at his expense a reasonable number of units of a basic model specified in the
test notice to a testing laboratory designated by the Secretary.

(5) Within five working days of the time the units are selected. the manufacturer must ship the specified units of a basic model to the designated testing lahoratorv.

(b) 

### Testing~oboroto~. Whenever the Department conducts enforcement testing at a designated laboratory in accordance with a test notice under this section,the resulting test data will constitute official test data for that basic model. The Department will use such
test data to make a determination of compliance or noncompliance.

(c)

### Sampling. The Secretary will base the determination of whether a manufacturer's basic model complies with the applicable energy performance standard on the testing conducted in accordance with the procedures set forth in this section and 

### 5431.507, and the applicable test procedures specified inthis part. Initially,the Department will test two units, except as follows:

(I)If only one unit of a basic model is available for testing, the Department will test that unit, and will base the compliance determination on the results for that unit in a manner otherwise in accordance with this section. Available units are those which are available for commercial distribution within the United States.

(2)If a basic model is very large or has unusual testing requirements, the Department may decide to base the determination of compliance on the testing of one unit, if the manufacturer

so requests and provides sufficient justification for the request. (d)

### Test unit selection.A DOE inspectorwill select a batch from all available units,and a test sample 

### (i.e., the units to be tested)from thebatch, in accordance with the provisions of this paragraph andthe conditions specified inthe test notice.

(1) DOE may select thebatch by utilizing criteria specified in the test notice, 

### e.g., date of manufacture, component-supplier,location of manufacturing facility, or other criteria which may differentiate oneunit from another within a basic model.

(2)DOE will randomly select individual units to be tested, comprising the test sample, from thebatch. DOE will achieve random selection by sequentially numbering all ofthe units in a batch andthen using a table of random numbers to select the units to be tested. The manufacturer must keep

on hand all units in thebatch until such time as the inspector determines the basic model to he in compliance or noncompliance.

(e)

### Test unitpreparation. (1) Prior to and during testing, no one may prepare, modify, or adjust in any manner a test unit selected in accordance with paragraph (d)of this section unless the applicableDOE test procedure allows such preparation,modification, or adjustment.DOE will conduct onetest for each test unit in accordance with the
ap licable test procedures. 

# 6) No one may perform any quality control, testing or assembly procedures

on a test unit, or any parts and subassemblies thereof, that is not performed during the production and assembly of all other units included in the basic model.

(3)A test unit is defective if such unit is inoperative or is found to be in noncompliance due to failure of the unit
to operate according to the manufacturer's design and operating instructions. Defective units, including those damaged due to shipping or handling, must be reported immediately

### Federal RegisterIVol. 64, 

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### IProposed Rules 

### 69617

to the Department.TheDepartment will authorize testing of an additional unit

on a case-by-case basis.

(f) 

### Testing at manufacturer's option.If the Department determines a basic model to be in noncompliance with the applicable energy performance standard
at the conclusion of its initial enforcement sampling plan testing,the manufacturer may request that the Department conduct additional testing of up to two additional units of the basic model at the manufacturer's expense. Testing under this paragraph must be in accordance with the applicable test procedure specified inthis part, the provisions of paragraphs (d) and (e)of this section, and 

### 5431.507(d).



### 5431.507 Enforcement; compliance determination procedure.

The Department will determine compliance for commercial HVAC & WH equipment as follows: (a)Make the computation in paragraph (b)of this section when the first sample size (nl) is two units. (b)Compute the mean (x,)of the measured energy performance of the nl units in the first sample as follows:

where (x,) is the measured energy efficiency or energy consumption of unit i.

(c)From the sample mean performance derived pursuant to paragraph (b)of this section,or from the measured performance when compliance is determined from testing

one unit pursuant to 

### 5 431.506(c), determine one of the following:

(1) For an Energy Efficiency Standard, ifthe aforementioned sample mean or measured performance is equal to or greater than 95 percent of the applicable energy efficiency standard, the basic model is in compliance and testing is at

an end.

(2)For an Energy Consumption Standard, if the aforementioned sample

mean or measured performance is equal
to or less than 105 percent of the applicable energy consumption standard,the basic model is in compliance and testing is at an end.

(3)Otherwise. the basic model is not in compliance.

(d) 

### Manufacturer-Option Testing. If the basic model is in non-compliance pursuant to paragraph (c)(3) of this section, the manufacturer may request additional testing, as follows.

(1) The manufacturer requests the testing of an additional number of units, such that the total size of the combined sample tested does not exceed 4. (2)Compute the mean energy performance ofthe new combined sample using the paragraph 

### (b) ofthis section.

(3)From the mean performance ofthe

new combined sample, determine one of the following:

(i)For an Energy Efficiency Standard, if the new combined sample mean is equal to or greater than 95 percent ofthe applicable energy efficiency standard, the basic model is in compliance and testing is at an end.

(ii)For an Energy Consumption Standard,if the new combined sample

mean is equal to or less than 105 percent ofthe applicable energy consumption standard, the basic model

. is in compliance and testing is at an end.

(iii) Otherwise, the basic model is in
not in compliance.



### 5431.508 Cessationof distribution of a basic model.

(a)If you are a manufacturer or private labeler, and DOE determines one of your models to be noncompliant, in accordance with 5431.506 and431.507,
or you determine that one of your models is noncompliant, you must:

(1) Immediately cease distribution in

commerce of all units of the basic model in question;

(2)Give immediate written notification of the determination of noncompliance, to all persons to whom
you have distributed units of the basic model manufactured since the date of the last determination of compliance: and

(3)If a request is made by the Secretary, provide DOE within 30 days of the request, records,reports and other documentation pertaining to the acquisition, ordering, storage, shipment, or sale of a basic model determined to be noncompliant.

(b)The manufacturer may modify the noncompliant basic model in such

manner as to make it comply with the applicable performance standard. You
must treat such a modified basic model

as a new basic model and certify it in accordance with the provisions of this subpart;except that in addition to satisfying all requirements ofthis subpart,you must also maintain records that demonstrate that modifications have been made to all units ofthe new basic model prior to its distribution in

commerce.

(c)If a manufacturer or private labeler has a basic model not properly certified in accordance with the requirements of this subpart, the Secretary may seek, among other remedies, injunctive action
to prohibit distribution in commerce of units of such abasic model. 

### 5431509 Remedies. If the Secretary determines that a basic model of covered equipment does
not comply with an applicable energy conservation standard:

(a)The Secretary will notify the manufacturer, private labeler or any other person as required, of this finding and of the Secretary's intent to seek a judicial order restraining further distribution in commerce of units of such a basic model unless the manufacturer, private labeler or any other person as required, delivers to the Secretary within 15 calendar days a

. statement, satisfactory to the Secretary, ofthe steps he will take to insure that the noncompliant basic model will no longer be distributed in commerce. The Secretary will monitor the im lementation of such statement.



# 8) If the manufacturer, private labeler

or any otherperson as required,fails to stop distribution of the noncompliant basic model, the Secretary may seekto restrain such violation in accordance with sections 334 and 345 ofthe Act.

(c)The Secretary will determine whether the facts of the case warrant the
assessment of civil penalties for knowing violations in accordance with sections 333 and 345 of the Act.

$j

431.510 Hearingsand appeals. (a) Under sections 333(d)and 345 of the Act,before issuing an order assessing a civil penalty against any person, the Secretary must provide to such a person a notice of the proposed penalty. Such notice must inform the
person that such person can choose (in writing within 30 days after receipt of the notice) to have the procedures of paragraph (c)of this section (inlieu of those in paragraph (b)of this section)
ap ly with respect to such assessment.



# g)(l) Unless a person elects, within 30 calendar days after receipt of a notice under paragraph (a)of this section,to have paragraph (c)apply with respect to the civil penalty under paragraph (a), the Secretary will assess the penalty, by order, after providing an opportunity for

an agency hearing under section 554 of title 5,United States Code,and making a determination of violation on the record before an administrative law judge appointed under section 3105 of suchtitle 5. Such assessment order will include the administrative lawjudge's findings and the basis for such
assessment.

(2)Any person against whom the Secretary assesses a penalty under this paragraph may, within 60 calendar days after the date of the order assessing such penalty,initiate action in the United States Court of Appeals for the appropriatejudicial circuit forjudicial64, 

### No. 238

### /Monday, December 13, 1999/Proposed Rules 

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### Federal Register/

### Vol.

review of such order in accordance with chapter 7 oftitle 5,United States Code. The court will havejurisdiction to enter

ajudgment affirming, modifying, or setting aside in whole or inpart,the order ofthe Secretary, or the court may remand theproceeding to the Secretary for such further action asthe court may direct.

(c)(l) In the case of any civil penalty with respect to which theprocedures of this paragraph have been elected,the Secretary will promptly assess such penalty,by order, after the date of the receipt of the notice under paragraph (a) of this section of theproposed penalty.

(2)If the person has not paid the civil penalty within 60 calendar days after the assessment has been made under paragraph (c)(l) ofthis section,the Secretary will institute an action in the appropriate District Court of the United States for an order affirming the
assessment of the civil penalty. The court will have authority to review de

novo the law and the facts involved and jurisdiction to enter ajudgment enforcing, modifying, and enforcing as

so modified, or setting aside in whole or inpart, such assessment.

(3)Any election to have this paragraph apply can onlybe revoked with the consent of the Secretary.

(d)If any person fails to pay an assessment of a civil penalty after it has become a final and unappealabie order under paragraph (b)of this section,or after the appropriateDistrict Court has entered final judgment in favor of the Secretary under paragraph (c)of this section,the Secretary will institute an action to recover the amount of such penalty in any appropriateDistrict Court ofthe United States. In such action, the validity and appropriateness of such final assessment order or judgment will not be subjectto review. (e)(l) In accordance with the provisions of sections 333(d)(5)(A) and 345 of the Act and notwithstanding the provisions of title 28,United States Code, or section 502(c)of the Department of Energy Organization Act, the General Counsel of the Department ofEnergy (or any attorney or attorneys within DOE designated by the Secretary) will represent the Secretary,and will supervise, conduct, and argue any civil litigation to which paragraph (c)of this section applies (includingany related collection action under paragraph (d)of this section) in a court ofthe United States or in any other court,except the Supreme Court ofthe United States. However,the Secretary or the General Counsel will consult with the Attorney General concerning such litigation and the Attorney General will provide, on request, such assistance in the conduct of such litigation as may be appropriate.

(2)In accordance with the provisions of sections 333(d)(5)(B) and 345 ofthe Act, and subject to the provisions of section 502(c)of the Department of Energy Organization Act, the Secretary will be represented by the Attorney General, or the Solicitor General, as appropriate, in actionsunder this section, except to the extent provided in paragraph (e)(l) ofthis section. (3)In accordancewith theprovisions of section 333(d)(5)(C) and 345 ofthe Act, section 402(d)of the Department of Energy Organization Act will not apply with respect to the function of the Secretary under this section.

Subpart P-General Provisions for Commercial HVAC & WH Products



### 9431.601 Petitionsfor waiver, and applicationsfor interim waiver, of test procedure.

(a)

### General criteria. (1) Any interested
person may submit a petition to waive for a particular basic model any requirements of 

### C; 431.162, and of the provisions specifying the test methods for other commercial HVAC & WH products, upon the grounds that either the basic model contains one or more design characteristics which either prevent testing of the basic model according to the prescribed test procedures, or the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data.

(2)

### If you have submitted a Petition for Waiver as provided in this subpart,
you may also file an Application for Interim Waiver of the applicable test procedure requirements.

(b)

### Submission,content, and 

### publication. (1) You must submit vour Petition for Waiver in triplicate, to the Assistant Secretary for Energv Efficiencv and Renewable Energy, United States Department of Energy. Each Petition for Waiver must:

(i)Identify the particular basic model(s)for which a waiver is requested, the design characteristic(s) constituting the grounds for the petition, and the specific requirements sought to be waived, and must discuss in detail the need for the requested waiver;

(ii)Identify manufacturers of all other basic models marketed in the United States and known to the petitioner to incorporate similar design characteristic(s);

(iii)Include any alternate test procedures known to the petitioner to evaluate the characteristics of the basic model in a manner representative of its
energy consum tion; and

(iv)Be signeBbyyou or by an authorized representative. In accordance with the provisions set forth in 10CFR 1004.11,anyrequest for confidential
treatment of any information contained in a Petition for Waiver or in supporting documentation must be accompanied by
a copy ofthe petition, application or supporting documentation from which the information claimed to be confidential hasbeen deleted. DOE will publish in the Federal Register the petition and supporting documents from which confidential information, as

. determinedby DOE,has been deleted in accordance with 10CFR 1004.11and will solicit comments, data and information with respect to the determination of the petition.

(2)You must submit any Application for Interim Waiver in triplicate, with the required three copies ofthe Petition for Waiver, to the Assistant Secretary for Energy Efficiency and Renewable Energy, U.S. Department ofEnergy. Each Application for Interim Waiver
must reference the Petition for Waiver by identifying the particular basic model(s)for which you seek a waiver and temporary exception. Each Application for Interim Waiver must demonstrate likely success of the Petition for Waiver and address what economic hardship and/or competitive disadvantage is likely to result absent a favorable determination on the Application for Interim Waiver. You or

an authorized representative must sign the Application for Interim Waiver.

(c)

### Notification toother manufacturers. (1) After filing a Petition for Waiver with DOE, and after DOE has published the Petition for Waiver in the Federal Register,you must,within five working days of such publication,notify in writing all known manufacturers of domesticallv marketed units of the same product type (as defined in section 340(1)of the Act) and must include in the notice a statement that DOE has published in the Federal Register on a certain datethe Petition for Waiver and supporting documents from which confidential information, if anv,as determined by DOE,has been deleted in accordance with 10CFR 1004.11. In complying with the requirements of this paragraph,you must file with DOE a statement certifying the names and addresses of each person to whom you have sent a notice of the Petition for Waiver.

(2)If you apply for Interim Waiver, whether filingjointly with or subsequent to your Petition for Waiver with DOE, you must concurrently notify in writing all known manufacturers of

### Federal RegisterIVol. 64, 

### No. 238/Monday, December 13,

domestically marketed units of the same reasons to grant immediate relief product type (as defined in Section pending a determination onthe Petition 340(1)of the Act), and must include in for Waiver. the notice a copy ofthe Petition for (4)

### Duration. An interim waiver will Waiver and a copy ofthe Application terminate 180 days after issuance or forInterim Waiver. In complying with upon the determination on thePetition this section, you must inthe written for Waiver, whichever occurs first. DOE notification include a statementthat the may extend an interim waiver for up to Assistant Secretary for Energy Efficiency 180days or modifi. its terms based on and Renewable Energy will receive and relevant information contained in the consider timely written comments on record and any commentsreceived the Application for Interim Waiver. subsequent to issuance of the interim



## - Upon filing an Application for Interim waiver. DOE will publish in the Federal Waiver, you must in complying with the Register notice of such extension and/ requirements of this paragraph certify to or any modification ofthe terms or DOE that a copy of'these documents has duration of the interim waiver. been sent to all known manufacturers of 

## (0 Provisions specific to waivers. (1) domestically marked units of the same 

### Rebuttal by petitioner. Following product type (aslisted in section 340(1) publication ofthe Petition for Waiver in of the Act).Such certification must the Federal Register, a petitioner may, include the names and addresses of within 10 working days of receipt of a such persons. You must comply with copy ofany comments submitted in the provisions of paragraph (c)(l) ofthis accordance with paragraph (b)(l) ofthis section with respect to the petition for section, submit a rebuttal statement to waiver. the Assistant Secretary for Energy

(dl 

### Comments;responses to Efficiency and Renewable Energy. A



### comments. (I)Any person submitting petitioner may rebut more than one written comments to DOE with respect response in a single rebuttal statement.
to anApplication for Interim Waiver (2)

### Disposition ofpetition. DOE will

must also send a copy of the comments notify the petitioner in writing as soon
to the applicant. as practicable of the disposition of each

(2)Any person submitting written Petition for Waiver. The Assistant

comments to DOE with respect to a Secretary for Energy Efficiency and Petition for Waiver must also send a Renewable Energy will issue a decision
copy of such comments to the on the petition as soon as is practicable petitioner. In accordance with following receipt and review ofthe paragraph (b)(l) of this section,a Petition for Waiver and other applicable petitioner may submit a rebuttal documents,including, but not limited

statement to the Assistant Secretary for to, comments and rebuttal statements. Energy Efficiency and Renewable (3)

### Consequence of filing petition. The Energy. filing of a Petition for Waiver will not

(el

### Provisions specific to interim constitute grounds for noncompliance 

### waivers. (I) 

### Dispositjon ofapplication. with any requirements of this subpart, 

### If administratively feasible,DOE will until a waiver or interim waiver has notify the applicant in writing of the been granted. disposition of the Application for (4)

### Granting: criteria, conditions,and Interim Waiver within 15business days 

### publication. The Assistant Secretary for of receipt of the application. Notice of Energy Efficiencyand Renewable DOE's determination on the Application Energy will grant a waiver,if he or she forInterim Waiver will be published in determines that the basic model for the Federal Register. which the waiver was requested

(2)

### Consequencesof filing application. contains a design characteristic which The filing of an Application forInterim either prevents testing of the basic Waiver will not constitute grounds for model according to the prescribed test noncompliance with any requirements procedures,or the prescribed test of this subpart,until an Interim Waiver procedures may evaluate the basic has been granted. model in a manner so unrepresentative

(3)

### Criteriafor granting. TheAssistant of its true energy consumption Secretary for Energy Efficiency and characteristics as to provide materially Renewable Energy will grant an Interim inaccurate comparative data. The Waiver from test procedure Assistant Secretary for Energy Efficiency requirements if he or she determines and RenewableEnergy may grant a that the applicant will experience waiver subject to conditions, which may economic hardship ifthe Application include adherence to alternate test for Interim Waiver is denied, if it procedures. DOE will promptly publish
appears likely that the Petition for in the Federal Register notice of each Waiver will be granted, andlor if the waiver granted or denied, and any Assistant Secretary determines that it limiting conditions of each waiver would be desirable for public policy granted. 

### 1999

### /Proposed Rules 

### 69619

(g)

### Revision ofregulation. Within one year of the granting of any waiver,the Department will publish in theFederal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, the Department will publish in theFederalRegister a final rule. Such waiver will terminate

on the effective date of such final rule.

(h)

### Exhaustion ofremedies.In order
to exhaust administrative remedies, any person aggrieved by an action under this section must file an appeal with the DOE's Office of Hearings andAppeals as provided in 10CFR Part 1003, subpart 

## c.

9431.602 Preemption of state regulations for commercial HVAC & WH products.

Beginning on the effective date of such standard, an energy conservation standard set forth in this part for a commercial HVAC & WH product supersedes any State or local regulation concerning the energy efficiency or energy use of that product, except as provided for in section 345(b)(2)(B)-(D) of the Act.



### 9431.603 Maintenanceof records.

(a)If you are the manufacturer of any commercial HVAC & WH product, you must establish, maintain and retain records of the following: (1) Thetest data for all testing conducted pursuant to 10CFR part 431, including any testing conducted by a VICP; and

(2)The development, substantiation, application, and subsequent verification of any AEDM.

(b)You must organize suchrecords and index them sothat they are readily accessible for review. The records must include the supporting test data associated with tests performed on any test units to satisfy therequirements of this subpart (except tests performed by theDepartment directly).

(c)You must retain all suchrecords for a period oftwo years from the date that production of all units of the commercial equipment for thebasic model has ceased. You must retain records in a form allowing ready access totheDepartment upon request.

9431.604 Imported equipment.

(a)Under sections 331 and 345 ofthe Act, anyperson importing any commercial HVAC & WH product into the United States must comply with the provisions ofthe Act and of this part, and is subject to the remedies of this part. (b)Any commercial HVAC & WH product offered for importation in

### 69620 

### Federal Register/Vol. 64, 

### No. 238/Monday, December 13, 1999fProposed Rules

violation of the Act and of this part will (b)Such product, when distributed in requiring suchperson to appear and be refused admission intothe customs commerce, or any container in which it give testimony,or to appear and territory of the United Statesunder rules is enclosed when so distributed, bears a produce documents. Such court can issued by the Secretary of the Treasury, stamp or label stating that such covered punish the failureto obey such order as except that the Secretary of the Treasury product is intended for export. a contemptthereof. may. by suchrules, authorize the importation of such covered product 1431.606 Subpoena' 

### 1 431.607 Confidentiality. 

### upon such terms and conditions Under sections 329(a)and 345 of the (including the furnishing ofa bond) as Act* forPurposes ofcarrying out this Under the provisions of 10

### CFR

may 

### appearto the secretary of~reasury part,the Secretary or the Secretary's 1004.11, 

### Person submitting appropriate to 

### ensure that such covered designee,may sign and issue subpoenas information or data which the Person product will not violate the Act andthis forthe 

### attendance 

### and testimony of believes to be confidential and exempt part, or will be exported or abandoned witnesses 

### and the production of by law from public disclosure should
to the United States. relevant books,records, papers, and submit one complete copy,and fifteen other documents, and administer the copies from which the information 

### 1

431.605 Exported equipment. 

### oaths. The Secretary mustpay witnesses believed to be confidential hasbeen Under sections 330 and 345 of the summoned under the provisions ofthis deleted. In accordance with the Act, thispart 

### does not apply to any section the same fees and mileage as procedures established at 10CFR 

### commercial HVAC & WH 

### product if: paid to witnesses in the Courts ofthe 1004.11,the Secretary must make his

(a)Such product is manufactured, United States. In case ofcontumacy by, own determination with regard to any sold,or held for sale for export from the or refusal to obey a subpoena served claimthat informationsubmitted be United States (or such product was upon,any persons subject to this Part, exempt from disclosure. imported for 

### export),unless such the Secretary may seek an order from product is, in fact, distributed in the District Court ofthe United States [FRDoc. 99-31670 Filed 12-10-99; 8:45 am1



### commerce for use in the United States, for anyDistrict in which such person is BlLUNG CODE 6.%0-0i-P 

### and found or resides or transacts business